Chapter 1
Tennessee Public Utility Commission

Part 1
General Provisions

65-1-101. Creation — Commissioners — Qualifications — Appointments — Vacancies — Term of office.

  1. There is created the Tennessee public utility commission consisting of five (5) part-time commissioners. The commissioners shall be appointed as follows: one (1) commissioner shall be appointed by the governor, one (1) commissioner shall be appointed by the speaker of the senate, one (1) commissioner shall be appointed by the speaker of the house of representatives, and two (2) commissioners shall be appointed by joint agreement among the governor, the speaker of the senate and the speaker of the house of representatives. In making the appointments pursuant to this subsection (a), the governor, the speaker of the senate and the speaker of the house of representatives shall strive to ensure that the Tennessee public utility commission is composed of commissioners who are diverse in professional or educational background, ethnicity, geographic residency, perspective and experience.
  2. Each commissioner of the commission shall have at a minimum a bachelor's degree and at least three (3) years' experience in a regulated utility industry, in executive level management, or in one (1) or more of the following fields:
    1. Economics;
    2. Law;
    3. Finance;
    4. Accounting; or
    5. Engineering.
  3. The commissioners of the commission shall be state officers and, except for the staggered terms provided in subsection (h), shall serve six-year terms.
  4. The governor, the speaker of the senate, and the speaker of the house of representatives shall make appointments by April 1, prior to the expiration of the terms of office of the commissioners.
  5. The term of office of each commissioner shall commence on July 1, following such commissioner's appointment.
  6. All appointments of the commissioners shall be confirmed by joint resolution adopted by each house of the general assembly within thirty (30) days after the appointment.
  7. Any vacancy on the commission shall be filled by the original appointing authority for such position to serve the unexpired term and each appointment shall be confirmed in the same manner as the original appointment. If, however, the general assembly is not in session and a vacancy occurs, the appropriate appointing authority shall fill such vacancy by appointment and the appointee shall serve the unexpired term, unless the appointment is not confirmed within thirty (30) days after the general assembly convenes following the appointment to fill such vacancy.
  8. The terms of current commissioners appointed during 2008 and commissioners appointed during 2012 shall be staggered and shall expire as follows:
    1. The terms of the existing commissioners appointed by the speaker of the house of representatives and the speaker of the senate shall expire on June 30, 2014;
    2. The term of the existing commissioner appointed by the governor shall expire on June 30, 2017;
    3. The terms of the joint commissioners commencing on July 1, 2012, shall expire on June 30, 2018.
  9. A commissioner shall continue to serve until the commissioner's successor is appointed.

Acts 1995, ch. 305, §§ 4, 5; 2002, ch. 826, § 3; T.C.A. § 65-1-201; Acts 2012, ch. 1070, § 1; 2017, ch. 94, §§ 45, 47.

Compiler's Notes. The Tennessee Public Utility Commission, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Former chapter, §§ 65-1-10165-1-117 (Acts 1897, ch. 10, §§ 1-7, 27, 31; 1907, ch. 390, § 1; 1913, ch. 10, § 1;

Shan. §§ 3059a5-3059a11, 3059a13-3059a21, 3059a62, 3059a68; Acts 1919, ch. 3, § 19; 1919, ch. 49, §§ 1, 3; mod. Code 1932, §§ 5380-5386, 5388-5393, 5395, 5396, 5438, 5444; impl. am. Acts 1937, ch. 33, §§ 24, 29; Acts 1947, ch. 39, § 1; impl. am. Acts 1949, ch. 38, § 1; Acts 1949, ch. 196, § 1; C. Supp. 1950, § 5383; Acts 1953, ch. 183, § 1; impl. am. Acts 1955, ch. 69, § 1; 1955, ch. 105, § 1; impl. am. Acts 1955, ch. 193, § 1; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1965, ch. 308, § 2; 1976, ch. 806, § 1 (124); 1979, ch. 230, § 1; T.C.A. (orig. ed.), §§ 65-101 — 65-104, 65-106 — 65-116, 65-118, 65-119, 65-121; Acts 1982, ch. 871, § 1; 1992, ch. 871, § 1; 1993, ch. 382, § 1; 1994, ch. 913, § 1) concerning the public service commission, was repealed by Acts 1995, ch. 305, § 5, effective July 1, 1996.

Former § 65-1-114 (Acts 1897, ch. 10, § 6; Shan., § 3059a19; Code 1932, § 5394; Acts 1979, ch. 230, § 1; T.C.A. (orig. ed.), § 65-117), concerning certified copies as evidence, was previously repealed by Acts 1991, ch. 273, § 35.

Acts 1995, ch. 305, § 4 provided that it is the intention of the general assembly that the evaluation committee reviewing the Tennessee regulatory authority pursuant to the Tennessee governmental entity review law consider the method of selection of the directors of such authority and report its recommendations on such selection process to the general assembly with its recommendations to continue, restructure or reestablish the Tennessee regulatory authority as a part of its normal review of the entity pursuant to § 4-29-223.

Acts 1995, ch. 305, § 6 provided that any duty or responsibility assigned to the public service commission pursuant to the provisions of this title, or any other provision of law which has not been transferred to an executive branch agency by the provisions of Acts 1995, ch. 305 is transferred to the Tennessee regulatory authority.

Acts 1995, ch. 305, § 7 provided that all rules of the public service commission in effect on May 26, 1995, shall remain in full force and effect as rules of the Tennessee regulatory authority and as rules of the appropriate departments until modified or repealed by the authority or appropriate department.

Acts 1995, ch. 305, § 11 provided:

“In order to carry out its functions, duties and responsibilities maintained under the provisions of this act, the public service commission shall retain and have the authority to exercise any and all of its powers and duties existing under Title 65 prior to enactment of this act, including, but not limited to, the power to subpoena, the power to take evidence, and the power to examine. Upon the termination of the public service commission, the Tennessee regulatory authority is expressly granted the same powers and duties as set forth above for the public service commission in order to carry out its responsibilities established by the provisions of this act.”

Acts 1995, ch. 305, § 45 provided:

“(a)  Notwithstanding any provision of law to the contrary, upon the effective date of this section [July 1, 1996], all remaining employees of the public service commission not transferred by Sections 44, 46, and 47 of this act charged with the responsibility of regulating and enforcing the provisions of Tennessee Code Annotated, Title 65, and any other employees of the public service commission necessary to assist in such regulating and enforcing, shall be transferred to the Tennessee regulatory authority created by this act. (b) All reports, documents, surveys, books, records, papers or other writings in the possession of the public service commission with respect to administering the provisions of Title 65, assigned to the Tennessee regulatory authority by this act, shall be transferred to and remain in the custody of the Tennessee regulatory authority. (c) All leases, contracts and all contract rights, and responsibilities in existence with the public service commission with respect to the duties transferred by this section shall be preserved and transferred to the Tennessee regulatory authority. (d) All assets, liabilities and obligations of the public service commission with respect to the duties transferred by this section shall become the assets, liabilities and obligations of the Tennessee regulatory authority. (e) Any revenues from rates, fares, charges, fines, and other moneys received pursuant to Tennessee Code Annotated, Title 65, an assigned to the Tennessee regulatory authority by this act as approved by the transition team pursuant to Section 48, shall be allocated to the Tennessee regulatory authority to implement the provisions of this act. (f) The authority shall promulgate rules and regulations pursuant to Title 4, Chapter 5, to effectuate the purposes of this act.”

Acts 1995, ch. 305, § 54 provided that as sections, parts, titles, chapters and volumes of Tennessee Code Annotated are amended, repealed, revised and replaced, the Tennessee code commission is directed to change references to the public service commission to references to the Tennessee regulatory authority and/or to appropriate departments to which duties and responsibilities of the public service commission have been transferred by the provisions of Acts 1995, ch. 305. After the effective date of Acts 1995, ch. 305 (see individual sections), any reference to the public service commission shall be deemed to be a reference to the Tennessee regulatory authority or appropriate department as provided by the provisions of Acts 1995, ch. 305.

Acts 1995, ch. 305, § 136 provided that for the purposes of transition, references to the public service commission may be deemed to be references to the Tennessee regulatory authority, the department of transportation, the department of safety, and the comptroller of the treasury, and references to the Tennessee regulatory authority may be deemed to be references to the public service commission, to accommodate the transition plans developed pursuant to § 65-1-301 (now § 65-1-201).

Acts 2002, ch. 826, § 7 provided that confirmations of appointments made or begun prior to July 1, 2002, remain in full force and effect and appointments made pursuant to such confirmations shall remain valid appointments.

Section 65-1-305 was transferred to § 65-1-114 in 2004.

Former § 65-1-306 (Acts 1996, ch. 931, § 1), concerning waiver of competitive process for former public service commission employees, was repealed by Acts 1996, ch. 931, § 3, effective December 31, 1996.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in the first sentence of (a); substituted “commission for “authority” and “commissioner” and “commissioners” for “director” and “directors” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Assessment of railroads and utilities for tax purposes, title 67, ch. 5, part 13.

Grand divisions, title 4, ch. 1, part 2.

Salaries of commissioners, § 8-23-101.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, §§ 49, 58; 13 Tenn. Juris., Gas Companies, § 2; 21 Tenn. Juris., Public Service Commissions, § 3.

Law Reviews.

Electricity — Original Jurisdiction of the Public Utility Commission, 14 Tenn. L. Rev. 639 (1937).

Attorney General Opinions. Transfer of functions of commission, OAG 95-043, 1995 Tenn. AG LEXIS 42 (4/24/95).

If the Tennessee regulatory authority's current directors are not reappointed, and if there are no new appointments to the director positions, the current directors will continue to hold their offices and to exercise their powers and perform their duties until their successors are duly appointed and confirmed by the general assembly; if one of the current directors refuses to continue in office, thereby creating a vacancy, the appointing authority may fill the vacancy by appointment; if the general assembly is in session when the vacancy occurs, the new appointment must be confirmed in the same manner as the original appointment; and if the general assembly is not in session when the vacancy occurs, the appointee may serve until the general assembly reconvenes and votes on confirmation of the appointment, OAG 02-060, 2002 Tenn. AG LEXIS 65 (5/7/02).

Amendments by Acts 2012, ch. 1070.  OAG 12-71, 2012 Tenn. AG LEXIS 71 (7/13/12).

65-1-102. Commissioners — Prohibited activities.

  1. No commissioner shall hold any other public office, under either the government of the United States or the government of this or any other state, nor shall any commissioner, while acting as such, engage in any business or occupation inconsistent with such person's duties as a commissioner. No commissioner shall be eligible to qualify as a candidate for any elected office unless such commissioner resigns from the commission prior to qualifying as a candidate. For the purposes of this section, “qualify as a candidate” means filing a statement certifying the name and address of a political treasurer pursuant to § 2-10-105(e).
  2. No person who owns, in an individual capacity or jointly with another person, any bonds, stocks, equity interest or other property in any business or entity regulated by the Tennessee public utility commission, or who is an agent or employee in any way of any such business or entity, shall be eligible to serve as a commissioner of the Tennessee public utility commission.
    1. No commissioner shall raise funds or solicit contributions for any political candidate or political party, or, except as provided in subdivision (c)(2), actively campaign for any candidate for public office.
      1. A commissioner shall be permitted to actively campaign for an “immediate family member” as that phrase is defined in § 8-50-502(8).
      2. The mere attendance of a commissioner at a political event or politically oriented event shall not constitute a violation of subdivision (c)(1).
      3. A commissioner's alleged violation of this subsection (c) shall be treated in the same manner as if such commissioner were a judge covered by Rule 10 of the Rules of the Supreme Court.
  3. No commissioner shall enter into an employment relationship, a consulting or representation agreement, or other similar contract or agreement with either an entity regulated by the commission or a subcontractor of such an entity for a period of one (1) year after the commissioner ceases to serve as a commissioner of the commission.

Acts 1995, ch. 305, § 5; 1996, ch. 636, § 1; 2001, ch. 450, § 1; T.C.A. § 65-1-202; Acts 2013, ch. 245, § 2; 2017, ch. 94, §§ 45-47.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in (b); substituted “commission” for “authority” and “commissioner” and “commissioners” for “director” and “directors” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-103. Meetings.

  1. The commissioners shall convene regular monthly meetings and shall remain in session until all business before them is disposed of, and shall hold other sessions at such times and places as may be necessary for the proper discharge of their duties. If the business of the commission does not require a monthly meeting, a majority of the commissioners may waive the requirement of a meeting.
  2. All decisions of the Tennessee public utility commission pertaining to dispositions to or from any deferred revenue account shall be made in a public meeting of the commission. The attorney general and reporter and any other interested party shall be given adequate notice of the meeting and shall be given the opportunity to present oral and written testimony. As used in this section, “deferred revenue account” means any account created for the excess earnings from utilities regulated by the Tennessee public utility commission.

Acts 1995, ch. 305,  § 5; T.C.A. § 65-1-203; Acts 2012, ch. 1070, § 2; 2017, ch. 94, §§ 45-47.

Amendments. The 2017 amendment substituted “commissioners” for “directors” twice in (a); substituted “the commission” for “the authority” in the second sentence of (a) and in the first sentence of (b); and substituted “Tennessee public utility commission” for “Tennessee Regulatory Authority” twice in (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-104. Quorum — Chair and vice chair — Panels.

  1. A majority of the commissioners of the Tennessee public utility commission shall constitute a quorum for the transaction of business. The commission shall elect one (1) of its commissioners to be the chair of the commission for a two-year term and shall elect one (1) of its commissioners to be the vice chair of the commission for a two-year term. The vice chair shall assume the role of chair at the expiration of the chair's two-year term.
  2. The chair and vice chair of the commission may be removed by a majority vote of the disinterested commissioners.
  3. The chair shall have the primary responsibility of formulating the broad strategies, goals, objectives, long-range plans and policies of the commission, in conjunction with the commissioners. The chair shall also have the power and duty to conduct ordinary and necessary business in the name of the commission. Such duties include, but are not limited to, the following:
    1. Giving notice of, and agendas for, all meetings of the commission to all commissioners in advance of the meeting;
    2. Assigning matters to be heard by panels in accordance with this section;
    3. Preparing and calling the docket items to be heard during each scheduled meeting of the commission;
    4. Keeping the official, full and correct record of all proceedings and transactions of the commission;
    5. Serving as the designated contact for all media inquiries to the commission;
    6. Ensuring that orders by the commission are issued in a timely manner and in accordance with the rules and procedures established by the executive director;
    7. Conducting a yearly performance evaluation of the executive director, which shall be submitted to the governor;
    8. Delegating duties of the chair to the vice chair; and
    9. Performing such other duties as the commission may assign or as may be required by statute, rule or regulation.
  4. The chair shall assign each matter before the commission to a panel of three (3) voting members, from among the commissioners. The remaining two (2) voting members of the commission, who are not assigned to a particular panel, shall not vote or deliberate regarding such matters. The commission shall establish reasonable procedures for rotating the commissioners for assignments to panels in an efficient manner. Such procedures shall ensure that all voting members of the commission serve on a substantially equal number of panels in a random fashion, to the extent practicable.

Acts 1995, ch. 305, § 5; 2002, ch. 826, § 4; T.C.A. § 65-1-204; Acts 2012, ch. 1070, §§ 3-6; 2017, ch. 94, §§ 45-47.

Compiler's Notes. Acts 2002, ch. 826, § 7 provided that confirmations of appointments made or begun prior to July 1, 2002, remain in full force and effect, and appointments made pursuant to such confirmations shall remain valid appointments.

Amendments. The 2017 amendment substituted “commissioners” for “directors” throughout; substituted “Tennessee public utility commission” for “Tennessee Regulatory Authority” in the first sentence of (a);  and substituted “commission” for “authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

Attorney General Opinions. Proposed amendment not within bill caption, OAG 99-073, 1999 Tenn. AG LEXIS 73 (3/23/99).

65-1-105. Compensation — Expenses.

  1. The compensation of each commissioner of the Tennessee public utility commission shall be thirty-six thousand dollars ($36,000) per year payable monthly out of the state treasury on the warrant of the commissioner of finance and administration. When commissioners are assigned to serve on a panel lasting more than one (1) day, the commissioner shall be compensated one hundred forty dollars ($140) for each day, or portion of a day, following the first day, for the duration of the matter. Such compensation shall be in addition to reimbursement for actual travel expenses on official business under subsection (b).
  2. The five (5) commissioners shall be reimbursed for their actual travel expenses on official business in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1995, ch. 305, § 5; 2002, ch. 826, § 5; T.C.A. § 65-1-205; Acts 2012, ch. 1070, § 7; 2017, ch. 94, §§ 45, 47.

Compiler's Notes. Acts 2002, ch. 826, § 7 provided that confirmations of appointments made or begun prior to July 1, 2002, remain in full force and effect, and appointments made pursuant to such confirmations shall remain valid appointments.

Amendments. The 2017 amendment, in (a),  substituted “each commissioner of the Tennessee public utility commission” for “each director of the Tennessee regulatory authority” in the first sentence, and substituted “When commissioners” for “When directors” and “the commissioner” for “the director” in the second sentence; and substituted “The five (5) commissioners” for “The five (5) directors” at the beginning of (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Collateral References.

Per diem compensation of railroad commissioners. 1 A.L.R. 296.

65-1-106. Travel reimbursement for employees subject to comprehensive travel regulations.

All employees of the Tennessee public utility commission shall be reimbursed for travel expenses in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-206; Acts 2017, ch. 94, § 45.

Amendments. The 2017 amendment substituted “the Tennessee public utility commission” for “the Tennessee regulatory authority”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-107. [Repealed.]

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-207; Acts 2017, ch. 94, §§ 45, 47; repealed by Acts 2019, ch. 98, § 1, effective March 28, 2019.

Compiler's Notes. Former § 65-1-107 concerned  prohibition of gifts.

65-1-108. Office — Furniture and supplies.

The Tennessee public utility commission shall be furnished a permanent office in Nashville, with all necessary furniture, stationery, and supplies, to be paid for by the state.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-208; Acts 2017, ch. 94, § 45.

Amendments. The 2017 amendment substituted “The Tennessee public utility commission” for “The Tennessee regulatory authority” at the beginning.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-109. Executive director.

  1. The executive director shall be appointed by joint agreement among the governor, the speaker of the senate and the speaker of the house of representatives for the initial term. Thereafter, the commissioners of the commission shall appoint the executive director. The term of the executive director shall be three (3) years. The executive director shall have at a minimum a bachelor's degree and either a minimum of five (5) years' experience in the regulated utility industry or a minimum of five (5) years' experience in executive-level management, with a preference toward experience in economics, law, finance, accounting or engineering. The executive director shall not be a commissioner of the commission.
  2. The commission may remove the executive director by a majority vote of the commissioners.
  3. The executive director shall have the principal responsibility of implementing the broad strategies, goals, objectives, long-range plans and policies of the commission. Among the executive director's duties, which are not limited to the following list, are:
    1. Serving as chief operating officer of the commission responsible for the day to day management of the commission and the supervision and hiring of all staff members within the limits of available funds authorized from time to time by the legislature;
    2. Administering, monitoring, and reviewing the operating procedures of each division of the commission, ensuring that each employee and division of the commission fully executes in an efficient and economical manner, the separate duties assigned to each;
    3. Submitting rules and policies for approval by the commission;
    4. Implementing and administering rules and policies for the efficient and economical internal management of the commission;
    5. Coordinating the preparation of the report to the general assembly as required by § 65-1-111;
    6. Supervising the expenditure of funds and being responsible for complying with all applicable state and federal law in the receipt and disbursement of funds; and
    7. Performing such other duties as the commission may require, from time to time, or as may be required by statute.
  4. The governor shall set the compensation of the executive director for the initial term of office of the executive director, which shall not exceed the compensation established for the commissioners of the claims commission. Thereafter, the commissioners of the commission shall set the compensation of the executive director.
  5. The executive director shall submit an annual report to the general assembly comparing telecommunications, electricity, natural gas, water and wastewater utility rates between Tennessee and the southeastern states. For the purpose of reporting rates in the report, the Tennessee public utility commission shall make comparisons on the basis of market choices made by consumers without regard to whether the services chosen are regulated or non-regulated services.

Acts 2012, ch. 1070, § 8; 2017, ch. 94, §§ 45, 46, 47, 80.

Compiler's Notes. Former § 65-1-109 (Acts 1995, ch. 305, § 5), concerning the duties of the executive secretary of the Tennessee regulatory authority, was repealed by Acts 2002, ch. 826, § 6, effective July 1, 2002.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section and substituted “Tennessee public utility commission” for “TRA” in the last sentence of (e).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-110. Minutes and official documents.

The minutes shall be signed by each member of the Tennessee public utility commission or by those present when any business is transacted. The minutes and all official documents of every kind shall be kept on file in the office of the commission.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-210; Acts 2017, ch. 94, §§ 45, 46.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in the middle and substituted “commission” for “authority” at the end.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-111. Report to general assembly.

  1. The Tennessee public utility commission shall, on the first Monday of February each year, make a report to the general assembly and to the governor of all matters relating to its office for the preceding year, and such as will disclose the practical workings of companies under its jurisdiction in this state, along with such suggestions as it may deem proper, together with an abstract of the minutes of all of its meetings.
  2. [Deleted by 2016 amendment.]

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-211; Acts 2012, ch. 1070, §§ 9, 10; 2016, ch. 797, § 18; 2017, ch. 94, § 45.

Amendments. The 2016 amendment deleted former (b) which read: “(b) The Tennessee regulatory authority shall prepare an annual report comparing, for the preceding fiscal year, the rates of municipal utilities, cooperatives, and utility districts providing water, gas or electricity to the rates of water, gas and electric utilities regulated by the authority. No later than October 1, 2012, and prior to October 1 of each subsequent year, the report shall be submitted to the governor, the speaker of the senate, the speaker of the house of representatives, and the members of the finance, ways and means committees of the senate and the house of representatives.”

The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” at the beginning of (a).

Effective Dates. Acts 2016, ch. 797, § 19. April 14, 2016.

Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Annual report, § 4-4-114.

Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

65-1-112. Copies of records.

For a copy of any record on file in its office, the Tennessee public utility commission shall charge and receive the same fees that are charged by the secretary of state for similar services, and shall convey into the state treasury any amount so received.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-212; Acts 2017, ch. 94, § 45.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” near the middle of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-1-113. Enforcement — Duties of authority.

It is the duty of the Tennessee public utility commission to ensure that Acts 1995, ch. 305 and all laws of this state over which they have jurisdiction are enforced and obeyed, that violations thereof are promptly prosecuted, and all penalties due the state are collected.

Acts 1995, ch. 305, § 5; T.C.A. § 65-1-213; Acts 2017, ch. 94, § 45.

Compiler's Notes. Acts 1995, ch. 305, referred to in this section, enacted or amended numerous provisions throughout the code. See the Session Laws Disposition Table in Volume 13.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” near the beginning of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

NOTES TO DECISIONS

5. Certificate of Public Convenience And Necessity.

Certificate of Public Convenience and Necessity (CCN)order did not impose conditions precedent because the language of the order was a summary of the relevant procedural background and details of the utility's petition and not a mandate by the Tennessee Regulatory Authority (TRA); while the statute allowed the TRA, in its discretion, to impose conditions upon the grant of CCN's, the order does not impose any such conditions. Tenn. Wastewater Sys. v. Tenn. Regulatory Auth., — S.W.3d —, 2016 Tenn. App. LEXIS 461 (Tenn. Ct. App. June 30, 2016).

65-1-114. Former public service commission officers to retain service weapons.

A public service commission officer who is authorized to carry a firearm while on duty, and has more than twenty-five (25) years of honorable service, and leaves the service of the public service commission before retirement eligibility because of personnel actions executed under Acts 1995, ch. 305, may retain such employee's service weapon under § 65-15-106(c)(3).

Acts 1996, ch. 931, § 2; T.C.A. § 65-1-305.

Cross-References. Unlawful carrying or possession of a weapon, § 39-17-1307.

65-1-115. Members of former public service commission included in the executive service.

  1. In addition to the designations of preferred and executive service employees in § 8-30-202, the following members of the former public service commission shall be included in the executive service:
    1. Members of the Tennessee public utility commission;
    2. The executive director of the Tennessee public utility commission;
    3. The personal staff of the members of the Tennessee public utility commission;
    4. The division commissioners and assistant division commissioners of the Tennessee public utility commission; and
    5. Any attorneys employed by the Tennessee public utility commission.
  2. All actions of the department of human resources in regard to the Tennessee public utility commission personnel transactions may, upon request of a majority of the commission's commissioners, be reviewed and revised, modified or reversed by action of the house finance, ways and means committee and the senate finance, ways and means committee.

Acts 1995, ch. 305, § 51; T.C.A. § 65-1-303; Acts 2017, ch. 94, §§ 45-47.

Compiler's Notes. In light of the passage of Acts 2012, ch. 800, which rewrote the civil service provisions, “preferred and executive employees in § 8-30-202”  was substituted for “career and executive service employees in § 8-30-208” in the introductory paragraph.

The reference to the “department of personnel” was changed to the “department of human resources” pursuant to Acts 2007, ch. 60 § 3, effective April 24, 2007.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” five times in (a) and once in (b); substituted “commissioners” for “directors” twice in (a)(4); and substituted “commission's commissioners” for “authority's directors” near the middle of (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Retirement bonuses for commission employees, § 8-34-209.

65-1-116. Commissioners deemed state employees eligible for insurance benefits.

Tennessee public utility commission commissioners shall be deemed state employees as defined in § 8-27-201(g) [repealed and reenacted; see Compiler's Notes] and shall be eligible for participation in group insurance for state officials and employee plans as approved by the general assembly.

Acts 2012, ch. 1070, § 11; 2017, ch. 94, §§ 45, 47.

Compiler's Notes. Section 8-27-201 was repealed and reenacted by Acts 2015, ch. 426, effective May 18, 2015, and no longer defines “state employees.” See now § 8-27-204(a) for comparable provisions.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” at the beginning of the section and substituted “commissioners” for “directors” following “Tennessee public utility commission”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Part 2
Transitional Civil Service Provisions

65-1-201 — 65-1-204. [Obsolete.]

Compiler's Notes. Former §§ 65-1-30165-1-304, concerning transitional civil service provisions, were deemed obsolete by the Code Commission in 2004, except for former § 65-1-303(b), which was transferred to present § 65-1-115. Sections 65-1-302, 65-1-303(a), and 65-1-304 were deemed obsolete except for defining the status and benefits.

Chapter 2
Procedure Before the Tennessee Public Utility Commission

65-2-101. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Commission” means the Tennessee public utility commission;
  2. “Contested case” means all proceedings before the commission in which the legal rights, duties, or privileges of specific parties are determined after a hearing before the commission; provided, that the fixing of rates shall be deemed a contested case rather than a rule-making proceeding; and
  3. “Rule” means every regulation, or statement of policy, or interpretation of general application and future effect, including the amendment or repeal thereof, adopted by the commission, whether with or without a prior hearing, to implement or make specific the laws enforced or administered by it, or to govern its organization or procedures, but does not include regulations concerning only the internal management of the commission which do not directly affect the rights or procedures available to the public.

Acts 1953, ch. 162, § 1 (Williams, § 5501.24); impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-201; Acts 1995, ch. 305, § 9; 2017, ch. 94, §§ 48, 50.

Amendments. The 2017 amendment deleted definition “Authority” which read, “‘Authority’” means the Tennessee regulatory authority;”; added definition “Commission” and substituted “commission” for “authority” in definitions “Contested case” and “Rule.”

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Procedure applicable to department of transportation, § 42-2-224.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

The Development of the Tennessee Uniform Administrative Procedures Act (Valerius Sanford), 6 Mem. St. U.L. Rev. 151 (1976).

Attorney General Opinions. Applicability to Welding Engineer Program of American Welding Society, OAG 97-155, 1997 Tenn. AG LEXIS 176 (11/14/97).

65-2-102. Adoption, effective date and publication of rules.

  1. The commission is empowered and directed to adopt rules in the following circumstances and in the following manner:
    1. The commission shall adopt rules governing the procedure prescribed or authorized by this chapter or by any other statute applicable to the commission; these rules shall include, but shall not be limited to, rules of practice before the commission, together with forms and instructions;
    2. The commission is empowered to adopt rules implementing, interpreting, or making specific the various laws which it enforces or administers; provided, that the commission shall have no power to vary or deviate from those laws, nor to extend its power or jurisdiction to matters not provided for in those laws;
    3. The commission may adopt, amend, or repeal such rules on its own motion, or on the petition of any interested person. The commission shall prescribe by rule the form of such petitions and the procedure for their submission, consideration and disposition; provided, that the commission shall abide by any such rule adopted by it, until it shall have been changed in the manner provided for in this chapter; and
    4. Prior to the adoption of any rule, or to the amendment or repeal of any rule, the commission shall, so far as practicable and in such manner as it deems expedient, publish or otherwise circulate notice of its intended action, and afford interested persons opportunity to submit data or argument in such manner as the commission shall prescribe; provided, that no person shall be entitled to challenge the validity of such a rule, or the amendment or repeal of such a rule, on the grounds that such person failed to receive such notice or was not given an opportunity to be heard.
  2. Rules adopted by the commission shall take effect at such date as the commission shall direct. The commission shall compile and publish all rules adopted by it in such manner and in such form as it deems expedient. The commission shall also furnish copies of such compilations of its rules to all persons requesting same at a price fixed by the commission to cover publication and mailing costs.

Acts 1953, ch. 162, §§ 2,  3 (Williams  §§ 5501.25, 5501.26); T.C.A. (orig. ed.), §§ 65-202, 65-203; T.C.A. (orig. ed.), § 65-2-103; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777 (1967).

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

Attorney General Opinions. Promulgation of rules for certification of competing local telecommunications providers, OAG 94-144, 1994 Tenn. AG LEXIS 170 (12/16/94).

NOTES TO DECISIONS

1. In General.

Rulemaking is the preferable way to formulate new policies, rules, or standards. Tennessee Cable Television Ass'n v. Tennessee Public Service Com., 844 S.W.2d 151, 1992 Tenn. App. LEXIS 583 (Tenn. Ct. App. 1992).

65-2-103. Petitions to be in writing — Filing fees.

  1. Every petition filed with the commission shall be in writing and shall be accompanied by a filing fee of twenty-five dollars ($25.00).
  2. Any petition filed on behalf of multiple parties shall be accompanied by a payment of twenty-five dollars ($25.00) for each party.

Acts 1986, ch. 862, § 1; 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Code Commission Notes.

Former § 65-2-103, concerning the effective date and publication of rules, was transferred to § 65-2-102(b) by the code commission.

Amendments. The 2017 amendment substituted “commission” for “authority” near the beginning of (a).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-104. Petition for declaratory ruling by the commission.

On the petition of any interested person, the commission may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it or with respect to the meaning and scope of any order of the commission. A declaratory ruling, if issued after argument and stated to be binding, is binding between the commission and the petitioner on the state of facts alleged in the petition, unless it is altered or set aside by a court in a proper proceeding. Such rulings are subject to review in the chancery court of Davidson County in the manner provided in this chapter for the review of decisions in contested cases. The commission shall prescribe by rule the form for such petitions and the procedure for their submission, consideration, and disposition.

Acts 1953, ch. 162, § 5 (Williams, § 5501.28); T.C.A. (orig. ed.), § 65-204; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-105. Declaratory judgment on validity of rules.

The validity of any rule of the commission may be determined upon petition for a declaratory judgment thereon addressed to the chancery court of Davidson County, when it appears that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the petitioner. The commission shall be made a party to all such proceedings. Such declaratory judgment may be rendered whether or not the petitioner has first requested the commission to pass upon the validity of the rule in question. In passing on such rules, the court shall declare the rule invalid only if it finds that it violates constitutional provisions or exceeds the statutory authority of the commission or was adopted without compliance with the rulemaking procedures provided for in this chapter.

Acts 1953, ch. 162, § 4 (Williams, § 5501.27); T.C.A. (orig. ed.), § 65-205; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

Attorney General Opinions. Applicability to Welding Engineer Program of American Welding Society, OAG 97-155, 1997 Tenn. AG LEXIS 176 (11/14/97).

65-2-106. Show cause orders.

The commission is empowered and authorized in the exercise of the powers and jurisdiction conferred upon it by law to issue orders on its own motion citing persons under its jurisdiction to appear before it and show cause why the commission should not take such action as the commission shall indicate in its show cause order appears justified by preliminary investigation made by the commission under the powers conferred upon it by law. All such show cause orders shall fully and specifically state the grounds and bases thereof, and the respondents named in the orders shall be given an opportunity to fully reply thereto. Show cause proceedings shall otherwise follow the provisions of this chapter with reference to contested cases, except where otherwise specifically provided.

Acts 1953, ch. 162, § 7 (Williams, § 5501.30); T.C.A. (orig. ed.), § 65-206; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” four times in the first sentence.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

Collateral References.

Federal control as affecting right to enforce order. 4 A.L.R. 1680, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

65-2-107. Parties to contested cases.

All persons having a right under the provisions of the laws applicable to the commission to appear and be heard in contested cases as defined in this chapter shall be deemed parties to such proceedings for the purposes of this chapter. In addition, the commission may upon motion allow any interested person to intervene and become a party to any contested case.

Acts 1953, ch. 162, § 6 (Williams, § 5501.29); T.C.A. (orig. ed.), § 65-207; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Parties and Claims, 4 Mem. St. U.L. Rev. 280 (1974).

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-108. Notice and hearing in contested cases.

All parties to contested cases shall be afforded an opportunity for hearing after reasonable notice. The notice shall state the time, place, and issues involved as specifically as may be practicable. At the hearing all parties shall be afforded an opportunity to present evidence and argument in accordance with the rules of the commission; provided, that informal disposition may also be made of any case by stipulation, agreed settlement, consent order, or default; and provided further, that this section shall not be applicable to proceedings otherwise provided for by law.

Acts 1953, ch. 162, § 8 (Williams, § 5501.31); T.C.A. (orig. ed.), § 65-208; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” in the third sentence preceding the proviso.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

Collateral References.

Representation of another before state public utilities or service commission as involving practice of law. 13 A.L.R.3d 812.

65-2-109. Rules of evidence — Judicial notice — Burden of proof.

In all contested cases:

  1. The commission shall not be bound by the rules of evidence applicable in a court, but it may admit and give probative effect to any evidence which possesses such probative value as would entitle it to be accepted by reasonably prudent persons in the conduct of their affairs; provided, that the commission shall give effect to the rules of privilege recognized by law; and provided further, that the commission may exclude incompetent, irrelevant, immaterial or unduly repetitious evidence;
  2. All evidence, including records and documents in the possession of the commission of which it desires to avail itself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference;
  3. Every party shall have the right of cross-examination of witnesses who testify, and shall have the right to submit rebuttal evidence;
  4. The commission may take notice of judicially cognizable facts and, in addition, may take notice of general, technical, or scientific facts within its specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noted. The commission may utilize its experience, technical competence, and specialized knowledge in the evaluation of evidence presented to it; and
  5. The burden of proof shall be on the party or parties asserting the affirmative of an issue; provided, that when the commission has issued a show cause order pursuant to this chapter, the burden of proof shall be on the parties thus directed to show cause.

Acts 1953, ch. 162, § 10 (Williams, § 5501.33); T.C.A. (orig. ed.), § 65-209; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777 (1967).

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

NOTES TO DECISIONS

1. In General.

The public service commission (now regulatory authority) is an administrative board and not a quasi-judicial body. McMinnville Freight Line, Inc. v. Atkins, 514 S.W.2d 725, 1974 Tenn. LEXIS 456 (Tenn. 1974).

65-2-110. Commission reporter — Preparation of official record.

The commission is authorized and directed to employ a competent court reporter or stenographer, whose salary shall be paid out of the general appropriations for the commission, and whose duties shall be to attend all sessions of the commission, to take down and transcribe all testimony offered in contested cases, to prepare the official record of all contested cases, which record shall include all petitions, applications, testimony, exhibits and such other matters as required by law or as the commission may direct, and to perform such other duties as the commission may direct; provided, that the commission may, in its discretion, direct the reporter not to transcribe particular proceedings if it appears that no such transcript is necessary; and provided further, that any party to a contested case may obtain copies of the transcript of testimony made by the commission's reporter upon the payment to the commission of the cost of same at such rate as the commission may determine.

Acts 1953, ch. 162, § 9 (Williams, § 5501.32); T.C.A. (orig. ed.), § 65-210; Acts 1995, ch. 305, § 9; 2017, ch. 94, §§ 49, 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section and substituted “commission's” for “authority's” preceding “reporter” in the proviso.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Section not repealed by Administrative Procedures Act, § 4-5-103.

Transmission of record to reviewing court, § 4-5-322.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 8.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

The Pre-Hearing Stage of Contested Cases under the Tennessee Uniform Administrative Procedures Act (L. Harold Levinson), 13 Mem. St. U.L. Rev. 465 (1984).

65-2-111. Proceedings before hearing examiners.

In any contested case, the commission may direct that the proceedings or any part thereof shall be heard by a hearing examiner to be appointed by the commission; provided, that only the members of the commission and the regular employees of the commission shall be eligible to serve as such examiners. Proceedings before hearing examiners shall be according to this chapter, other applicable laws and the rules of the commission. Whenever a contested case, or any part thereof, is heard by a hearing examiner, the hearing examiner shall make a proposal for decision in writing which shall include findings of fact and conclusions of law made by the hearing examiner. Such proposals for decisions shall be served on all parties of record, and each party who would be adversely affected by the proposed decision shall be given an opportunity to file exceptions and present argument in writing to the commission itself. Before the commission shall enter a final order in such cases, the members thereof shall personally consider the entire record, or such portion thereof as may be cited by the parties, and shall make its decision in the form and manner prescribed by this chapter for decisions in contested cases.

Acts 1953, ch. 162, § 11 (Williams, § 5501.34); T.C.A. (orig. ed.), § 65-211; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

NOTES TO DECISIONS

1. Construction.

Contested case proceedings involving certificates of authority for radio common carriers must be consistent not only with the State Radio Common Carrier Act, compiled in title 65, chapter 30, and the public service commission's (now Tennessee regulatory authority's) enabling statutes but also with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; while they may conduct contested case proceedings themselves, they may also appoint a hearing officer to hear all or any part of a particular case. Jackson Mobilphone Co. v. Tennessee Pub. Serv. Comm'n, 876 S.W.2d 106, 1993 Tenn. App. LEXIS 790 (Tenn. Ct. App. 1993), rehearing denied, 876 S.W.2d 106, 1994 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1994).

65-2-112. Decisions and orders in contested cases.

Every final decision or order rendered by the commission in a contested case shall be in writing, or stated in the record, and shall contain a statement of the findings of fact and conclusions of law upon which the decision of the commission is based. Copies of such decisions or orders shall be delivered or mailed to each party or to the party's attorney of record.

Acts 1953, ch. 162, § 12 (Williams, § 5501.35); T.C.A. (orig. ed.), § 65-212; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” twice in the first sentence.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Contested Cases Under the Tennessee Uniform Administrative Procedures Act (L. Harold Levinson), 6 Mem. St. U.L. Rev. 215 (1976).

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

NOTES TO DECISIONS

1. Findings of Fact.

Tennessee Regulatory Authority made sufficient factual findings to facilitate the appellate court's review because it clarified that its rejection of the related costs stemmed from its decision to exclude the overall acquisition costs, and the reasons for such exclusion were explained in great detail in the Authority's earlier order setting rates. Pipeline, LLC v. Tenn. Regulatory Auth., — S.W.3d —, 2017 Tenn. App. LEXIS 733 (Tenn. Ct. App. Aug. 24, 2017).

65-2-113. Publication of decisions and orders in contested cases.

The commission shall each year compile and publish in such manner as it deems expedient such of its decisions or orders as it deems to be of general interest, and shall charge for copies of such compilations a reasonable price to cover the cost of publication and mailing. The commission may also include within such compilations decisions or orders with reference to the rules of the commission.

Acts 1953, ch. 162, § 19 (Williams, § 5501.42); T.C.A. (orig. ed.), § 65-213; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-114. Petitions for rehearing in contested cases.

Any party to a contested case who deems to be aggrieved by a final order of the commission and who desires to have the same modified or set aside may within fifteen (15) days after the entry of such order file with the commission a written petition for rehearing, which shall specify in detail the grounds for the relief sought in the petition and authorities in support.

Acts 1953, ch. 162, § 13 (Williams, § 5501.36); T.C.A. (orig. ed.), § 65-214; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-115. Effect of filing of petition for rehearing.

The filing of a petition for rehearing shall not suspend or delay the effective date of the commission's order, and the order shall take effect on the date fixed by the commission and shall continue in effect unless and until the petition is granted or until the order is superseded, modified, or set aside in a manner provided by law.

Acts 1953, ch. 162, § 14 (Williams, § 5501.37); T.C.A. (orig. ed.), § 65-215; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium — Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-116. Grounds for rehearing.

A petition for rehearing will lie only for the following grounds:

  1. Some material error of law committed by the commission;
  2. Some material error of fact committed by the commission; or
  3. The discovery of new evidence sufficiently strong to reverse or modify the commission's order, and which could not have been previously discovered by due diligence.

Acts 1953, ch. 162, § 15 (Williams, § 5501.38); T.C.A. (orig. ed.), § 65-216; Acts 1995, ch. 305, § 9; 2017, ch. 94, §§ 50, 82.

Amendments. The 2017 amendment substituted “commission” for “authority” twice and “commission's” for “authority's” in (3).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

NOTES TO DECISIONS

1. New Evidence.

Because a public utility failed to demonstrate good cause why new evidence could not have been presented, the Tennessee Regulatory Authority did not abuse its discretion by declining to consider it the additional evidence; the public utility had ample opportunity during the contested case hearing and for approximately sixty days thereafter to present any necessary evidence to meet its burden of proof, but it chose not to present additional evidence until after the Authority ruled. Pipeline, LLC v. Tenn. Regulatory Auth., — S.W.3d —, 2017 Tenn. App. LEXIS 733 (Tenn. Ct. App. Aug. 24, 2017).

65-2-117. Replies to petitions for rehearing.

Copies of a petition for rehearing shall be served on all parties of record who may file replies to such petition.

Acts 1953, ch. 162, § 16 (Williams, § 5501.39); T.C.A. (orig. ed.), § 65-217.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-118. Disposition of petitions for rehearing.

The commission may, in its discretion, set the petition down for hearing or enter an order with reference to the petition without a hearing; provided, that in any event the commission shall dispose of the petition within thirty (30) days after filing thereof. If the commission enters no order disposing of the petition within the thirty-day period, the petition shall be deemed to have been denied as of the expiration of the thirty-day period.

Acts 1953, ch. 162, § 17 (Williams, § 5501.40); T.C.A. (orig. ed.), § 65-218; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-119. Proceedings upon granting of petition for rehearing.

Upon the granting of a petition for rehearing by the commission, the commission shall set the matter for rehearing as soon as practicable. In disposing of matters on rehearing, the commission shall have all the powers and shall follow the procedures of the chancery courts with reference to the disposition of rehearings in such courts, except as otherwise provided in this chapter.

Acts 1953, ch. 162, § 18 (Williams, § 5501.41); T.C.A. (orig. ed.), § 65-219; Acts 1995, ch. 305, § 9; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-120. Conflict of laws.

If, in any case to which this chapter applies, this chapter conflicts with any other law in this state, this chapter shall control.

Acts 1953, ch. 162, § 31 (Williams, § 5501.54); T.C.A. (orig. ed.), § 65-231.

Compiler's Notes. Section 4-5-103(b) of the Uniform Administrative Procedures Act provides that where there is a conflict between the provisions of that act and § 65-2-110, § 65-2-110 controls, but that in any other case of conflict between the Uniform Administrative Procedures Act and any statute, whether general or specific, the Uniform Administrative Procedures Act shall control. See also United Inter-Mountain Tel. Co. v. Public Serv. Comm'n, 555 S.W.2d 389 (Tenn. 1977); Public Serv. Comm'n v. General Tel. Co., 555 S.W.2d 395 (Tenn. 1977).

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-121. Liberal construction of chapter.

This chapter shall not be construed as in derogation of the common law, but shall be given a liberal construction, and any doubt as to the existence or the extent of a power conferred shall be resolved in favor of the existence of the power.

Acts 1953, ch. 162, § 32 (Williams, § 5501.55); T.C.A. (orig. ed.), § 65-232.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

65-2-122. Establishment of optional services purchased by regulated entities or unregulated service providers — Cost-based charges for services — Election to use services.

  1. The commission may establish optional services that may be purchased by regulated entities or other unregulated service providers, which are related to the exercise, administration or enforcement of jurisdiction delegated to the commission by state or federal law.
  2. The establishment of charges for services described in subsection (a) shall be cost-based.
  3. No charge for services as established in this section shall be applied to any party that does not expressly elect to use such services, and no party shall be required to elect to use such optional services as a condition of initiating any case before the commission.

Acts 2013, ch. 245, § 3; 2017, ch. 94, § 50.

Amendments. The 2017 amendment substituted “commission” for “authority” twice in (a) and at the end of (c).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Chapter 3
Regulation of Railroads by Department of Transportation

Part 1
General Provisions

65-3-101. All railways subject to chapter.

All railways are declared subject to this chapter, and all individuals, companies, corporations, trustees, receivers, and lessees, owning, operating, and managing such railways for the transportation of freight and passengers, are declared common carriers.

Acts 1897, ch. 10, § 14; Shan., § 3059a39; Code 1932, § 5415; T.C.A. (orig. ed.), § 65-301.

Compiler's Notes. Acts 1995, ch. 305, § 11 provided:

“In order to carry out its functions, duties and responsibilities maintained under the provisions of Acts 1995, ch. 305, the public service commission shall retain and have the authority to exercise any and all of its powers and duties existing under title 65 prior to enactment of Acts 1995, ch. 305, including, but not limited to, the power to subpoena, the power to take evidence, and the power to examine. Upon the termination of the public service commission, the Tennessee regulatory authority is expressly granted the same powers and duties as set forth above for the public service commission in order to carry out its responsibilities established by the provisions of Acts 1995, ch. 305.”

Acts 1995, ch. 305, § 44 provided:

“(a)  Notwithstanding any provision of law to the contrary, upon the effective date of this section [July 1, 1995] all employees of the public service commission charged with the responsibility of regulating and enforcing the provisions of Tennessee Code Annotated, Title 65, Chapter 3, and Chapter 5, Part 1 [repealed], and Chapters 11 and 12, and any other employees of the public service commission necessary to assist in such regulating and enforcing, shall be transferred to the department of transportation, created by Tennessee Code Annotated, Section 4-3-101. (b) All reports, documents, surveys, books, records, papers or other writings in the possession of the public service commission with respect to administering the provisions of Title 65, assigned to the department of transportation by this act, shall be transferred to and remain in custody of the department of transportation. (c) All leases, contracts and all contract rights and responsibilities in existence with the public service commission with respect to the duties transferred by this section shall be preserved and transferred to the department of transportation. (d) All assets, liabilities and obligations of the public service commission with respect to the duties transferred by this section shall become the assets, liabilities and obligations of the department of transportation. (e) Any revenues from rates, fares, charges, fines, and other moneys received pursuant to Tennessee Code Annotated, Title 65, Chapter 12, shall be allocated to the department of transportation as approved by the transition team pursuant to Section 48 [§ 65-1-301 (now § 65-1-201)] to implement the provisions of this act. (f) The commissioner of transportation shall promulgate rules and regulations pursuant to Title 4, Chapter 5, to effectuate the purposes of this act.”

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 12; 21 Tenn. Juris., Railroads, § 7.

Attorney General Opinions. Transfer of railroad authority to department of transportation, OAG 97-026, 1997 Tenn. AG LEXIS 25 (3/31/97).

NOTES TO DECISIONS

1. Incline Railroad.

An incline railroad operating up a mountain grade and confined to area of one county was not subject to assessment by commission as a railroad property. Lookout I. & L. L. R. Co. v. King, 59 S.W. 805, 1900 Tenn. Ch. App. LEXIS 125 (1900).

2. Interurban Railroad.

An interurban railroad comes under the provisions of this section. Hogan v. Nashville I. R. Co., 131 Tenn. 244, 174 S.W. 1118, 1914 Tenn. LEXIS 102, L.R.A. (n.s.) 1915E788 (1915).

65-3-102. Interstate commerce excepted.

This chapter and chapter 5 of this title shall be construed to apply to and affect only the transportation of passengers, freight cars and services to persons or between points within this state.

Acts 1897, ch. 10, § 30; Shan., § 3059a 67; mod. Code 1932, § 5443; T.C.A. (orig. ed.), § 65-302.

65-3-103. Uniform laws.

It is the duty of the department of transportation, by correspondence, conventions, or otherwise, to confer with such departments of other states and the interstate commerce commission, and such persons from states which have no railroad commission, as the governors of such states may appoint, for the purpose of agreeing, if practicable, upon a draft of statutes to be submitted to the legislature of each state, which shall secure uniform control of transportation in the several states, and from one (1) state into or through another state, as will best subserve the interest of trade and commerce of the whole country; and the department of transportation shall include in its annual report to the governor an abstract of the proceedings of any such conference or convention.

Acts 1897, ch. 10, § 29; Shan., § 3059a66; Code 1932, § 5442; T.C.A. (orig. ed.), § 65-303; Acts 1995, ch. 305, § 10.

65-3-104. Power to adopt rules and regulations.

The department of transportation has the power to make all needed rules for its government and for its proceedings, and regulate the mode of all investigations and hearings of railroad companies and other parties before it, and to adopt and enforce such rules and regulations and modes of procedure as it may deem proper for the hearing and determination of all complaints made by any railroad company or other parties; provided, that no person desiring to be present at any such investigation by the department of transportation shall be denied admission.

Acts 1897, ch. 10, § 8; 1907, ch. 390, § 2; Shan., § 3059a23; Code 1932, § 5399; T.C.A. (orig. ed.), § 65-304; Acts 1995, ch. 305, § 10.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

NOTES TO DECISIONS

1. Pleadings.

Great liberality in pleadings before the railroad and public utilities commission is indulged, and pleadings may be quite informal so that if facts are stated in the complaint and the answer thereto which fairly give notice to the parties and the commission of the questions to be considered and the issues to be decided, a valid order thereon may be entered. Tennessee C. R. Co. v. Pharr, 29 Tenn. App. 531, 198 S.W.2d 289, 1946 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1946).

65-3-105. Enforcement of regulations and orders.

The department of transportation is to perform all duties imposed upon it by this chapter and chapter 5 of this title, and see that such companies shall comply with all such regulations and orders as it may reasonably and lawfully make. If any such company fails or refuses to comply with such reasonable and lawful regulations and orders, it shall be the duty of the department of transportation to enforce the same. Power is given the department of transportation to enforce the same by mandamus or mandatory injunction, or by other summary proceedings provided by law. In all such proceedings, the orders, regulations, rates and tariffs made and fixed by the department of transportation pursuant to this chapter and chapter 5 of this title shall be taken and treated as prima facie reasonable and valid. It is made the duty of the courts having jurisdiction in such proceedings to hear and determine all such summary causes as speedily as practicable, giving preference or priority thereto as in revenue causes.

Acts 1897, ch. 10, § 32; 1915, ch. 92, § 1; Shan., § 3059a69; Acts 1921, ch. 70, § 2; mod. Code 1932, § 5445; T.C.A. (orig. ed.), § 65-305; Acts 1995, ch. 305, § 10.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

Collateral References.

Constitutionality and construction of statute imposing upon public service corporation expense of investigation of its affairs. 101 A.L.R. 197.

Federal control as affecting right to enforce order. 4 A.L.R. 1680, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Necessity of some evidence at hearing to support decision of commission. 123 A.L.R. 1349.

Railroad company as proper party to proceeding during federal control to compel trains to stop at certain city. 19 A.L.R. 678, 52 A.L.R. 296, 137 A.L.R. 504.

65-3-106. Information concerning company affairs.

  1. The department of transportation shall inform itself fully and thoroughly in regard to the affairs of every company doing business in this state, and under its jurisdiction. It shall cause to be prepared suitable blanks with questions calculated to elicit all information concerning same, and, as often as may be necessary, furnish the blanks to each such company.
  2. Each company receiving from the department of transportation any such blanks shall cause the same to be properly filled out, so as to answer fully and correctly each question therein propounded, and in case such company is unable to answer any question, it shall give a satisfactory reason for its failure, and the answer, duly sworn to by the proper officer of the company, shall be returned to the department of transportation at its office in Nashville within thirty (30) days from the receipt of same.

Acts 1897, ch. 10, § 8; Shan., §§ 3059a24, 3059a25; Code 1932, §§ 5400, 5401; T.C.A. (orig. ed.), §§ 65-306, 65-307; Acts 1995, ch. 305, § 10.

65-3-107. Company reports.

  1. It is the duty of each and every company, corporation, or individual, owning, operating, or managing such a company in this state, to send to the department of transportation at its office in Nashville, the monthly, quarterly, and annual statements of the operations of such company or individual, if such reports are issued; if not, then such company or individual shall send such reports as may be issued at any special or regular time. The president or chief officer of each and every such company shall, on or before February 1 of each year, make and transmit to the department of transportation at its office in Nashville, under oath of the president or chief officer of the company, a full and true statement of the affairs of the company as the same existed on the preceding January 1, in accordance with the direction and schedules prepared and furnished by the department of transportation.
  2. All common carriers shall send a copy of all safety inspection reports of such common carrier's tracks or track system which are prepared for or made by the federal railroad administration to the department of transportation. “Common carrier” is understood not to apply to private in-plant or intra-plant trackage owned or leased by private corporations which do not engage in serving the public as common carriers.
  3. Any officer, agent, or employee failing or refusing to make, under oath, any report required by the department of transportation, within the time required, or failing or refusing to answer fully under oath, if required, any inquiry propounded by the department of transportation, or who shall, in any way, hinder or obstruct the department of transportation, in the discharge of its duties, commits a Class C misdemeanor.

Acts 1897, ch. 10, §§ 12, 13; Shan., §§ 3059a37, 3059a38; Code 1932, §§ 5413, 5414; Acts 1979, ch. 423, § 1; T.C.A. (orig. ed.), §§ 65-308, 65-309; Acts 1989, ch. 591, § 113; 1995, ch. 305, § 10.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

65-3-108. Powers of department of transportation to examine.

The department of transportation is given full power to examine the books and papers of the companies, and to examine, under oath, the officers, agents, and employees of the companies and any other persons, to procure the necessary information to intelligently and justly discharge its duties and carry out the provisions of this chapter and chapter 5 of this title.

Acts 1897, ch. 10, § 8; Shan., § 3059a26; Code 1932, § 5402; T.C.A. (orig. ed.), § 65-310; Acts 1995, ch. 305, § 10.

65-3-109. Confidential information.

The department of transportation shall not give publicity to any contracts, leases, or engagements obtained by it in its official capacity, if the interests of any company would thereby be injuriously affected, unless, in the judgment of the department of transportation, the public interest requires it.

Acts 1897, ch. 10, § 11; Shan., § 3059a36; Code 1932, § 5412; T.C.A. (orig. ed.), § 65-311; Acts 1995, ch. 305, § 10.

Cross-References. Confidentiality of public records, § 10-7-504.

65-3-110. Power of department of transportation to take evidence.

The department of transportation has the power to examine, under oath, any person, or the directors, officers, agents, and employees of any such corporation doing business in this state, concerning the management of its affairs, and to obtain information pursuant to this chapter and chapter 5 of this title, and has the power to issue subpoenas for the attendance of witnesses, to compel the production of books and papers, and to administer oaths.

Acts 1897, ch. 10, § 9; Shan., § 3059a27; Code 1932, § 5403; T.C.A. (orig. ed.), § 65-312; Acts 1995, ch. 305, § 10.

65-3-111. Refusal to obey process or testify — Penalty.

Any person who neglects or refuses to obey the process of subpoenas issued by the department of transportation or who, being in attendance, refuses to testify commits a Class C misdemeanor. Each refusal to obey the subpoena or to testify is a separate offense.

Acts 1897, ch. 10, § 9; Shan., § 3059a28; Code 1932, § 5404; T.C.A. (orig. ed.), § 65-313; Acts 1989, ch. 591, § 113; 1995, ch. 305, § 10.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

65-3-112. Power to issue subpoenas.

The department of transportation, in making any examination or investigation provided for, has the power to issue subpoenas for the attendance of witnesses by such rules as it may prescribe.

Acts 1897, ch. 10, § 10; Shan., § 3059a29; Code 1932, § 5405; T.C.A. (orig. ed.), § 65-314; Acts 1995, ch. 305, § 10.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

65-3-113. Compensation of witnesses.

Each witness who appears before the department of transportation, by order of the department of transportation, shall receive for attendance the compensation provided by law, which shall be paid by the state treasurer on warrant of the commissioner of finance and administration, upon the presentation of proper voucher sworn to by such witness, and approved by the commissioner of transportation; provided, that no witness shall be entitled to any witness fees or mileage who is directly or indirectly interested in any such company in this state or out of it, or who is in any way interested in any stock, bond, mortgage, security, or earnings of any such company, or who shall be the agent or employee of such company, or an officer thereof when summoned at the instance of such company. No witness furnished with free transportation shall receive compensation for the distance traveled on such free transportation.

Acts 1897, ch. 10, § 10; Shan., § 3059a30; Code 1932, § 5406; impl. am. Acts 1937, ch. 33, §§ 24, 29; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 65-315; Acts 1995, ch. 305, § 10.

65-3-114. Witness failing to obey subpoena.

In case any witness fails or refuses to obey a subpoena, the department of transportation may issue an attachment for such witness, directed to any sheriff or constable of the state, and compel the witness to attend before the department of transportation and give testimony upon such matters as shall be lawfully required by it.

Acts 1897, ch. 10, § 10; Shan., § 3059a31; Code 1932, § 5407; T.C.A. (orig. ed.), § 65-316; Acts 1995, ch. 305, § 10.

65-3-115. Witness failing to attend or answer questions.

If a witness, after being duly summoned, fails or refuses to attend, or to answer any question propounded to such witness, which such witness would be required to answer if in court, the department of transportation shall have power to fine and imprison such witness for contempt in the same manner that the judge of any court of competent jurisdiction might do under similar circumstances.

Acts 1897, ch. 10, § 10; Shan., § 3059a32; Code 1932, § 5408; T.C.A. (orig. ed.), § 65-317; Acts 1995, ch. 305, § 10.

Code Commission Notes.

Although Acts 1989, ch. 591, § 113 indicated that the penalty provisions in this section should be rewritten to indicate that a violation of this section is a Class C misdemeanor, the code commission has decided that this section should not be rewritten to reflect Acts 1989, ch. 591, § 113.

Cross-References. Punishment for contempt, § 29-9-103, Tenn. R. Crim. P. 42.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

65-3-116. Officers or employees testifying exempt from indictment.

No officer, agent, servant, or employee of any such company, who appears and testifies before the department of transportation under this chapter or chapter 5 of this title or in any civil or criminal proceedings instituted by the department of transportation under this chapter or chapter 5 of this title, shall be liable to indictment or presentment for any violation of this chapter or chapter 5 of this title about which such person so testifies.

Acts 1897, ch. 10, § 10; Shan., § 3059a33; Code 1932, § 5409; T.C.A. (orig. ed.), § 65-318; Acts 1995, ch. 305, § 10.

65-3-117. Depositions.

The department of transportation shall, in all cases, have a right in its discretion to issue proper process and take depositions instead of compelling personal attendance of witnesses.

Acts 1897, ch. 10, § 10; Shan., § 3059a34; Code 1932, § 5410; T.C.A. (orig. ed.), § 65-319; Acts 1995, ch. 305, § 10.

65-3-118. Fees of sheriff or constable executing process.

The sheriff or constable executing any process issued under this chapter and chapter 5 of this title shall receive such compensation as may be allowed by the department of transportation, not to exceed the fees prescribed by law for similar services.

Acts 1897, ch. 10, § 10; Shan., § 3059a35; Code 1932, § 5411; T.C.A. (orig. ed.), § 65-320; Acts 1995, ch. 305, § 10.

65-3-119. Penalties generally.

  1. It is the duty of the district attorneys general to bring suit in the name of the state on the relation of the department of transportation, in any court having jurisdiction thereof, to recover any penalty imposed by this chapter and chapter 5 of this title.
  2. If any company, corporation or lessee knowingly violates this chapter or chapter 5 of this title, or does any act prohibited therein, or fails or refuses to perform any duty required by the department of transportation pursuant to this chapter or chapter 5 of this title for which a penalty has not therein been provided, for each and every such act of violation it shall pay to the state of Tennessee a penalty of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).
  3. All penalties provided for in this chapter or chapter 5 of this title shall be recovered, and suit thereon shall be brought, in the name of the state of Tennessee.
  4. All penalties and fines recovered shall be paid into the state treasury.

Acts 1897, ch. 10, §§ 20, 25, 26; Shan., §§ 3059a46, 3059a55, 3059a59, 3059a60; Code 1932, §§ 5422, 5431, 5435, 5436; modified; Acts 1980, ch. 760, § 1; T.C.A. (orig. ed.), §§ 65-321 — 65-324; Acts 1991, ch. 138, § 2; 1995, ch. 305, § 10.

Cross-References. District attorneys general to prosecute all suits, § 65-3-120.

65-3-120. Civil and criminal suits.

  1. The circuit, chancery courts and courts of general sessions have jurisdiction of all suits of a civil nature arising under this chapter and chapter 5 of this title, according to the nature of the suit and the amount involved, and the circuit and criminal courts have jurisdiction of all criminal proceedings so arising.
  2. The district attorney general of the judicial district in which the suit is to be instituted shall prosecute suits so brought in the name of the state.
  3. The department of transportation shall report all such violations with the facts in its possession to such district attorney general and request the district attorney general to institute the proper proceedings.
  4. All suits between the state and any such company shall have precedence in all courts over all other suits pending therein, and the judges of the courts are directed to advance such suits on their dockets.

Acts 1897, ch. 10, §§ 26, 27; Shan., §§ 3059a56, 3059a61, 3059a63, 3059a64; Code 1932, §§ 5432, 5437, 5439, 5440; impl. am. Acts 1979, ch. 68, § 3; modified; T.C.A. (orig. ed.), §§ 65-325 — 65-328; Acts 1995, ch. 305, § 10.

Cross-References. Suits for penalties, § 65-3-119.

65-3-121. Indictments — Prosecutor.

  1. Indictments or presentments under this chapter and chapter 5 of this title shall be only upon recommendation or request of the department of transportation, filed in the court having jurisdiction of the offense.
  2. The department of transportation or any member thereof, or any person authorized by law to prosecute criminal cases, may be prosecutor.

Acts 1897, ch. 10, § 26; Shan., § 3059a57; Code 1932, § 5433; T.C.A. (orig. ed.), § 65-329; Acts 1995, ch. 305, § 10.

65-3-122. Limitation of actions.

All prosecutions or actions under this chapter and chapter 5 of this title shall be commenced within one (1) year after the offense has been committed or the cause of action has accrued, or the same shall be barred.

Acts 1897, ch. 10, § 26; Shan., § 3059a58; Code 1932, § 5434; T.C.A. (orig. ed.), § 65-330; Acts 1995, ch. 305, § 10.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 49.

NOTES TO DECISIONS

1. Application of Limitation Provision.

The limitation of this section only has application to suits brought by any person against a public utility company for violation of the provisions of this chapter or by the district attorney general in the name of the state on relation of the former commission to recover any penalty imposed by the chapter. Gulf, M. & N. R. Co. v. Hunt Bros. Furniture Co., 173 Tenn. 327, 117 S.W.2d 12, 1938 Tenn. LEXIS 19 (1938).

2. Suit by Railroad to Recover Undercharge.

In a suit by a railroad to recover for an undercharge on an intrastate shipment the six-year statute of limitations was controlling, and not the one-year limitation of this section. Gulf, M. & N. R. Co. v. Hunt Bros. Furniture Co., 173 Tenn. 327, 117 S.W.2d 12, 1938 Tenn. LEXIS 19 (1938).

65-3-123. Abatement of dangerous or unhealthy conditions.

  1. The department of transportation has the power and authority relative to commercial railroads, interurban railroads, and street railroads to inspect the conditions existing on all trains operating in Tennessee, along the rail rights-of-way, in rail yards and terminals, and at rail loading and unloading facilities connected to property owned or operated by the railroads, except for those areas of loading and unloading facilities requiring no access for service by Class I railroads. This power and authority is in addition to those granted in § 65-11-107. Such inspection shall be conducted for the purpose of assuring the safety, health and comfort of rail customers, the general public and rail employees, and for the purpose of abating and removing any dangerous or unhealthy conditions found to exist in these locations.
  2. The department of transportation, on its own motion or on the petition of any citizen, shall have a hearing on the question embraced within this section, as to the presence of dangerous or unhealthy conditions of trains or along the rights-of-way, yards and terminals of all commercial railroads and street railroads.
  3. It is the duty of the department of transportation, after the hearing, to order the abatement and removal of any dangerous or unhealthy condition, if found to exist, and to order improvements to be made remedying same, when such conditions are shown to be dangerous to the health and safety of the general public or the employees.

Acts 1939, ch. 130, § 1; C. Supp. 1950, § 5449; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-331; Acts 1991, ch. 138, § 1; 1995, ch. 305, §§ 10, 12.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4; 21 Tenn. Juris., Public Service Commissions, § 4.

Law Reviews.

The Indeterminate Permit for Public Utilities in Tennessee (Henry B. Witham), 6 Tenn. L. Rev. 1 (1927).

NOTES TO DECISIONS

1. Constitutionality.

Acts 1939, ch. 130, whose caption only recited that it was an act to amend specified sections of the Code did not violate Tenn. Const. art. II, § 17, on the ground that the contents of the act were not adequately described, since it was presumed that legislature knew the nature of the section sought to be amended since it had enacted the Code. Pharr v. Nashville, C. & S. L. Ry., 186 Tenn. 154, 208 S.W.2d 1013, 1948 Tenn. LEXIS 530 (1948).

2. Validity.

This section authorizing the former commission to inspect conditions existing on trains, or along rights-of-way, yards and terminals of all railroads for preservation of safety, health and comfort of general public and railroad employees and authorizing the former commission to order abatement of any dangerous or unhealthy condition after notice and hearing is valid as a reasonable regulation. Pharr v. Nashville, C. & S. L. Ry., 186 Tenn. 154, 208 S.W.2d 1013, 1948 Tenn. LEXIS 530 (1948).

3. Scope.

The former public service commission exceeded its authority under this section when it ordered a railroad to rebuild a bridge in order to ensure the safety and convenience of the public in crossing a railroad right-of-way. Tennessee Public Service Com. v. Southern R. Co., 554 S.W.2d 612, 1977 Tenn. LEXIS 641 (Tenn. 1977).

4. Abandonment of “Team Track.”

Order of former commission requiring railroad to abandon a “team track” because of noise and smoke emanating from the area was void since it was an attempt by the former commission to exercise a judicial function superior to the courts. Pharr v. Nashville, C. & S. L. Ry., 186 Tenn. 154, 208 S.W.2d 1013, 1948 Tenn. LEXIS 530 (1948).

5. Walkways in Railroad Yards.

Questions regarding former public service commission safety standards for the construction and maintenance of walkways in railroad yards had not been preempted by federal law. Illinois C. G. R. Co. v. Tennessee Public Service Com., 736 S.W.2d 112, 1987 Tenn. App. LEXIS 2697 (Tenn. Ct. App. 1987).

Part 2
Inspection, Control, and Supervision Fee

65-3-201. General provisions.

  1. Every railroad which is doing business in this state and subject to the control and jurisdiction of the department of transportation and to which this chapter applies, shall pay to the state on or before July 1 of each year, a fee for the inspection, control and supervision of the business, service and rates of such railroads.
  2. The fee prescribed by this section shall be paid by railroads in addition to any and all property, franchise, license and other taxes, fees and charges fixed, assessed or charged by law against the railroads.
  3. The amount of the fee prescribed by this section shall be assessed against the actual ton miles operated annually by each railroad in this state, but no fee shall be assessed against any ton miles operated in excess of the maximum assessable ton miles for each railroad. The maximum assessable ton miles shall be the total ton miles reported to the former public service commission by each railroad in calendar year 1990, plus four percent (4%) of that base amount for each calendar year thereafter. The fee fixed and assessed against these ton miles to be paid by each railroad is four cents (4¢) per one thousand (1,000) ton miles. This fee is effective on payments made to the former public service commission on or before July 1, 1995, based upon ton miles for the calendar year 1995, and in each year thereafter.
  4. In no case shall the fee to be paid be less than one hundred dollars ($100) which will be the minimum inspection, control and supervision fee to be paid by any railroad subject to such fee.

Acts 1970, ch. 599, § 1(1-4); T.C.A., § 65-332; Acts 1986, ch. 862, § 4; 1988, ch. 582, § 1; 1991, ch. 271, § 1; 1995, ch. 305, § 10; 1995, ch. 536, § 1; 1998, ch. 646, § 1.

Compiler's Notes. The former public service commission, referred to in (c), was abolished by Acts 1995, ch. 305. Authority under this chapter was transferred from the commission to the department of transportation, effective July 1, 1995.

Cross-References. Petitions to be in writing, filing fee, § 65-2-103.

Powers and construction of railroads, title 65, ch. 6.

Prohibition of gas storage tanks within two hundred feet of a railroad, § 68-101-105.

65-3-202. Collection and disposition of fee.

The inspection, control and supervision fees provided for in this part shall be collected by the department of transportation. Such fees, when collected, shall be deposited in the state treasury but shall be kept in a separate account, to be known as the “railroad account,” and the funds so raised shall thus be segregated on a fiscal year basis. Effective June 30, 1996, the balance in the railroad account is to reflect all fees collected for the fiscal year and should reflect any payments authorized by this chapter for the fiscal year and each year thereafter. The same accounting procedures used by the department of finance and administration for the determination of other reserve fund balances for the department of transportation shall be applicable to the railroad account balance.

Acts 1970, ch. 599, § 1(6); T.C.A., § 65-333; Acts 1995, ch. 305, § 10; 1995, ch. 536, § 2.

65-3-203. Default.

In case of default in the payment of any such fee, or part thereof, when the same shall become due, as provided in this part, any railroad in default shall be liable to a penalty of ten percent (10%) per month on the amount of the fee, which may be recovered by suit of the state for every month it remains in default, and any such penalty, when collected, is to be deposited in the state treasury as part of the railroad account.

Acts 1970, ch. 599, § 1(7); T.C.A., § 65-334; Acts 1995, ch. 305, § 10.

65-3-204. Lien for fees and penalties.

A lien is declared and shall exist upon all the property of each railroad in default for the payment of the fee prescribed, together with all penalties accruing hereunder, which liens shall be superior to all other liens, except those for federal, state, county and municipal taxes.

Acts 1970, ch. 599, § 1(8); T.C.A., § 65-335; Acts 1995, ch. 305, § 10.

65-3-205. Employees.

The commissioner of transportation is empowered to employ such rate experts, engineers, attorneys, accountants, auditors, inspectors, examiners, clerks, agents or other employees, and assign to them such duties as shall be necessary to enable the department of transportation to fully perform the duties, and to exercise the powers conferred by this chapter upon the department of transportation, subject to its review. This section shall not be construed to authorize or to permit such attorneys to file any action or to otherwise appear before any state or federal court without prior approval of the attorney general and reporter.

Acts 1970, ch. 599, § 1(19); T.C.A., § 65-336; Acts 1982, ch. 788, § 7; 1995, ch. 305, §§ 10, 13; 1995, ch. 536, § 3.

65-3-206. Railroads to file statements.

Every such railroad doing business in this state shall file with the department of transportation a statement under oath, in such form and substance as may be prescribed by the department of transportation, setting forth accurately the ton miles operated in the state, together with the total number of Tennessee main line miles for the preceding calendar year. Any such railroad failing to file such statement as required, or failing to give such other information as may be reasonably required of such railroad, commits a Class C misdemeanor for each day of such failure to comply.

Acts 1970, ch. 599, § 1(5); T.C.A., § 65-337; Acts 1989, ch. 591, § 113; 1995, ch. 305, § 10.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

65-3-207. Use of fees.

The inspection, control and supervision fees generated by this part shall be used only to support railroad-related programs administered by the department of transportation and assessment functions performed by the comptroller of the treasury under title 67, chapter 5, part 13.

Acts 1998, ch. 787, § 1.

Chapter 4
Regulation of Public Utilities by Commission

Part 1
General Provisions

65-4-101. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Competing telecommunications service provider” means any individual or entity that offers or provides any two-way communications service, telephone service, telegraph service, paging service, or communications service similar to such services and is certificated as a provider of such services after June 6, 1995, unless otherwise exempted from this definition by state or federal law;
  2. “Current authorized fair rate of return” means:
    1. For an incumbent local exchange telephone company operating pursuant to a regulatory reform plan ordered by the former public service commission under TPSC rule 1220-4-2-.55, any return within the range contemplated by TPSC rule 1220-4-2-.55(1)(c)(1) or TPSC rule 1220-4-2-.55(d);
    2. For any other incumbent local exchange telephone company, the rate of return on rate base most recently used by the former public service commission in an order evaluating its rates;
  3. “Gross domestic product-price index (GDP-PI)” used to determine limits on rate changes means the final estimate of the chain-weighted gross domestic product-price index as prepared by the United States department of commerce and published in the Survey of Current Business, or its successor;
  4. “Incumbent local exchange telephone company” means a public utility offering and providing basic local exchange telephone service as defined by § 65-5-108(a) pursuant to tariffs approved by the former public service commission prior to June 6, 1995;
  5. “Interconnection services” means telecommunications services, including intrastate switched access service, that allow a telecommunications service provider to interconnect with the networks of all other telecommunications service providers;
    1. “Public utility” means every individual, copartnership, association, corporation, or joint stock company, its lessees, trustees, or receivers, appointed by any court whatsoever, that own, operate, manage or control, within the state, any interurban electric railway, traction company, all other common carriers, express, gas, electric light, heat, power, water, telephone, telegraph, telecommunications services, 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. “Public utility” as defined in this section shall not be construed to include the following nonutilities:
      1. Any corporation owned by or any agency or instrumentality of the United States;
      2. Any county, municipal corporation or other subdivision of the state of Tennessee;
      3. Any corporation owned by or any agency or instrumentality of the state;
      4. Any corporation or joint stock company more than fifty percent (50%) of the voting stock or shares of which is owned by the United States, the state of Tennessee or by any nonutility referred to in subdivisions (a)(1), (2), and (3);
      5. Any cooperative organization not organized or doing business for profit, cooperative association not organized or doing business for profit, or cooperative corporation not organized or doing business for profit.  For purposes of this subdivision (6)(A)(v), “cooperative” shall mean only those nonprofit cooperative entities organized under or otherwise subject to the Rural Electric and Community Services Cooperative Act, compiled in chapter 25, part 2 of this title, or the Telephone Cooperative Act, compiled in chapter 29 of this title.
      6. Any individual, partnership, copartnership, association, corporation or joint stock company offering domestic public cellular radio telephone service authorized by the federal communications commission; provided, that the real and personal property of such domestic public cellular radio telephone entities shall be assessed by the comptroller of the treasury pursuant to §§ 67-5-801(a)(1), 67-5-901(a)(1), and § 67-5-1301(a)(2); provided, however, that until at least two (2) entities, each independent of the other, are authorized by the federal communications commission to offer domestic public cellular radio telephone service in the same cellular geographical area within the state, the customer rates only of a company offering domestic public cellular radio telephone service shall be subject to review by the Tennessee public utility commission pursuant to §§ 65-5-101 — 65-5-104. Upon existence in a cellular geographical area of the conditions set forth in the preceding sentence, domestic public cellular radio telephone service in such area, for all purposes, shall automatically cease to be treated as a public utility under this title. The Tennessee public utility commission's authority over domestic public cellular radio telephone service is expressly limited to the above extent and the commission shall have no authority over resellers of domestic public cellular radio telephone service. For the purpose of this subdivision (6)(A)(vi), “authorized” means six (6) months after granting of the construction permit by the federal communications commission to the second entity or when the second entity begins offering service in the same cellular geographical area, whichever should first occur. This subdivision (6)(A)(vi) does not affect, modify or lessen the utility commission's authority over public utilities that are subject to regulation pursuant to chapter 5 of this title;
      7. Any county, municipal corporation or other subdivision of a state bordering Tennessee, but only to the extent that such county, municipal corporation or other subdivision distributes natural gas to retail customers within the municipal boundaries and/or urban growth boundaries of a Tennessee city or town adjoining such bordering state;
      8. Any of the foregoing nonutilities acting jointly or in combination or through a joint agency or instrumentality; and
      9. For purposes of §§ 65-5-101 and 65-5-103, “public utility” shall not include interexchange carriers. “Interexchange carriers” means companies, other than incumbent local exchange telephone companies, owning facilities in the state which consist of network elements and switches, or other communication transmission equipment used to carry voice, data, image, and video traffic across the local access and transport area (LATA) boundaries within Tennessee;
      1. “Public utility” does not mean nonprofit homeowners associations or organizations whose membership is limited to owners of lots in residential subdivisions, which associations or organizations own, construct, operate or maintain water, street light or park maintenance service systems for the exclusive use of that subdivision; provided, however, that the subdivisions are unable to obtain such services from the local utility district. None of the property, property rights or facilities owned or used by the association or organization for the rendering of such services shall be under the jurisdiction, supervision or control of the Tennessee public utility commission;
      2. “Public utility” does not mean any nonprofit corporation, as defined in § 501(c)(4) of the Internal Revenue Code (26 U.S.C. § 501(c)(4)), which owns and operates a wastewater system primarily for the use of the members of the corporation and which has received a written statement of exemption from regulation as a public utility from the Tennessee public utility commission prior to January 1, 2009;
    2. “Public utility” includes a wind energy facility, as defined in § 65-17-101, and does not include a wind energy facility subject to § 65-17-102; and
  6. “Telecommunications service provider” means any incumbent local exchange telephone company or certificated individual or entity, or individual or entity operating pursuant to the approval by the former public service commission of a franchise within § 65-4-207(b), authorized by law to provide, and offering or providing for hire, any telecommunications service, telephone service, telegraph service, paging service, or communications service similar to such services unless otherwise exempted from this definition by state or federal law.

Acts 1919, ch. 49, § 3; Shan. Supp., § 3059a86; Code 1932, § 5448; Acts 1935, ch. 42, § 1; 1943, ch. 51, § 1; C. Supp. 1950, § 5448; Acts 1979, ch. 195, § 1; T.C.A. (orig. ed.), § 65-401; Acts 1984, ch. 869, § 1; 1995, ch. 305, §§ 14, 20; 1995, ch. 408, §§ 2, 3; 1999, ch. 317, § 1; 2001, ch. 27, § 1; 2011, ch. 430, §§ 1, 2; 2017, ch. 94, § 51; 2018, ch. 825, § 2.

Code Commission Notes.

Subdivision designations for the definitions of “public utility” and “telecommunications service provider” in § 65-4-101 were amended by the code commission in 2011. Subdivision (6) was redesignated as subdivision (6)(A); former subdivisions (6)(A)-(I), as present subdivisions (6)(A)(i)-(ix), respectively; former subdivision (7), as (6)(B); and the definition of “telecommunications service provider” as subdivision (7).

Amendments. The 2017 amendment, in the definition of “public utility”, substituted “Tennessee public utility commission” for “Tennessee regulatory authority” throughout (A)(vi) and in (B)(i); and, in (A)(vi), substituted “The Tennessee public utility commission's authority” for “The Tennessee regulatory authority's authority” at the beginning and substituted “the commission” for “the authority” near the end of the next to last sentence, and substituted “the utility commission's authority” for “the regulatory authority's authority” in the last sentence.

The 2018 amendment added (C) in the definition of “public utility”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2018, ch. 825, § 20. April 24, 2018.

Cross-References. Municipal gas companies exempt from regulation, § 7-39-311.

Municipal utilities exempt from regulation, §§ 7-34-106, 7-34-117.

Regulation of rates by regulatory authority, title 65, ch. 5.

Utilities district, exemption, § 7-82-104.

Utility location, title 13, ch. 24, part 3.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Electricity, § 2; 13 Tenn. Juris., Gas Companies, §§ 3, 4; 21 Tenn. Juris., Public Service Commissions, §§ 2, 3; 25 Tenn. Juris., Water Companies and Waterworks, § 2.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

The Indeterminate Permit for Public Utilities in Tennessee (Henry B. Witham), 6 Tenn. L. Rev. 1 (1927).

Attorney General Opinions. Authority's power to regulate debt issuance by public utilities engaged in interstate commerce, OAG 99-119, 1999 Tenn. AG LEXIS 119 (5/14/99).

Any proposed classification of political promotional speech as telemarketing or telephone solicitation through redefinition of those terms, within the current consumer protection regulatory scheme, would be constitutionally suspect, OAG 03-011, 2003 Tenn. AG LEXIS 12 (1/24/03).

A telecommunications provider that has been granted a certificate of public convenience and necessity by the Tennessee Regulatory Authority to provide competing access services and transport telecommunications services in Tennessee is entitled to exercise right-of-way and eminent domain powers under Tennessee law. OAG 15-16, 2015 Tenn. AG LEXIS 15 (3/3/2015).

A solar electricity generating facility that comes within the statutory definition of “public electric system” is prohibited from selling power in certain geographical territories.  Whether its property is “affected by and dedicated to public use” will depend on a variety of factors, specific to each case.  The fact that it provides power “directly and exclusively to owners and/or tenants located on the same or adjacent premises” is just one of many factors to be considered but is not alone determinative of whether or not its property is affected by and dedicated to public use.   If the owner of a solar electricity generating facility is a public electric system as defined in T.C.A. § 65-34-102(5), it would likewise be a public utility as defined in T.C.A. § 65-4-101(6)(A) unless it were to come within one of the many statutory exceptions detailed in T.C.A. § 65-4-101(6)(A)(i) through (B)(ii).  OAG 17-25, 2017 Tenn. AG LEXIS 24 (4/10/2017).

NOTES TO DECISIONS

1. Construction.

Under § 65-4-106 it is expressly provided that this chapter should not be construed as being in derogation of the common law, but should be given a liberal construction favorable to the powers of the commission (now authority); and under such construction the commission has original jurisdiction to determine questions of rates applicable to consumers of electric current. Trent v. Tennessee Public Service Co., 171 Tenn. 89, 100 S.W.2d 660, 1936 Tenn. LEXIS 65 (1937).

Tennessee has amended this section so as to exclude federal corporations such as the Tennessee Valley Authority from the jurisdiction of the state utilities commission (now authority). Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543, 1939 U.S. LEXIS 973 (1939), overruled in part, Bond v. United States, 180 L. Ed. 2d 269, 131 S. Ct. 2355, 564 U.S. 211, 2011 U.S. LEXIS 4558 (U.S. 2011).

The body of Acts 1935, ch. 42, is limited to this section, which defines term “public utility,” since there is no mention of any other act or section. Tiger Creek Bus Line v. Tiger Creek Transp. Ass'n, 187 Tenn. 654, 216 S.W.2d 348, 1948 Tenn. LEXIS 480 (1948).

Acts 1935, ch. 42, § 1, did not amend Motor Carrier Act (§§ 65-15-10165-15-123) in defining public utilities, though caption declared that it was amending §§ 5380 to 5508 of the 1932 Code, although §§ 5471 to 5501 inclusive of the 1932 Code included the old Motor Carrier Act, since in 1933 these sections were repealed and such sections did not exist at the time Acts 1935, ch. 42, were enacted. Tiger Creek Bus Line v. Tiger Creek Transp. Ass'n, 187 Tenn. 654, 216 S.W.2d 348, 1948 Tenn. LEXIS 480 (1948).

2. Public Utilities.

Public utilities, over which the commission (now authority) is given jurisdiction, are those operating privileges, franchises, licenses or agreements “heretofore granted, or hereafter to be granted.” Tennessee Eastern Electric Co. v. Hannah, 157 Tenn. 582, 12 S.W.2d 372, 1928 Tenn. LEXIS 224 (1928).

Chancery court properly dismissed a public utility's complaint for, inter alia, a declaratory judgment for lack of subject matter jurisdiction because, while the utility had the right to provide water service, the gravamen of its complaint was to maintain its exclusive franchise by prohibiting a developer and a competitor from providing water service where the utility's averments were ostensibly an appeal of the PUC's refusal to issue a declaratory order—that the competitor was a “public utility” and was illegally operating without a certificate of public convenience—and the PUC lacked authority to grant certificates of public convenience or to eject a competitor from an exclusive service area. Milcrofton Util. Dist. of Williamson Cty. v. Non Potable Well Water, Inc., — S.W.3d —, 2019 Tenn. App. LEXIS 227 (Tenn. Ct. App. May 10, 2019).

3. Public Interest.

After hearing and a determination that a privilege sought is necessary, the commission has no power to withhold a certificate until the public interest is conserved. Tennessee Eastern Electric Co. v. Hannah, 157 Tenn. 582, 12 S.W.2d 372, 1928 Tenn. LEXIS 224 (1928).

A state is without power to fix, by law, prices at which commodities may be sold, services rendered, or property used, unless the business or property involved is affected with a public interest. Williams v. Standard Oil Co., 278 U.S. 235, 49 S. Ct. 115, 73 L. Ed. 287, 1928 U.S. LEXIS 323, 60 A.L.R. 596 (1928), overruled in part, Olsen v. Nebraska, 61 S. Ct. 862, 313 U.S. 236, 85 L. Ed. 1305, 1941 U.S. LEXIS 1202, 133 A.L.R. 1500 (1941).

A business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby, in effect, granted to the public. Williams v. Standard Oil Co., 278 U.S. 235, 49 S. Ct. 115, 73 L. Ed. 287, 1928 U.S. LEXIS 323, 60 A.L.R. 596 (1928), overruled in part, Olsen v. Nebraska, 61 S. Ct. 862, 313 U.S. 236, 85 L. Ed. 1305, 1941 U.S. LEXIS 1202, 133 A.L.R. 1500 (1941).

A business is not affected with a public interest merely because it is large or because the public is warranted in having a feeling of concern in respect of its maintenance. Williams v. Standard Oil Co., 278 U.S. 235, 49 S. Ct. 115, 73 L. Ed. 287, 1928 U.S. LEXIS 323, 60 A.L.R. 596 (1928), overruled in part, Olsen v. Nebraska, 61 S. Ct. 862, 313 U.S. 236, 85 L. Ed. 1305, 1941 U.S. LEXIS 1202, 133 A.L.R. 1500 (1941).

The terms “public use” and “public utility” are synonyms. Memphis Natural Gas Co. v. McCanless, 183 Tenn. 635, 194 S.W.2d 476, 1946 Tenn. LEXIS 247 (1946), cert. denied, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946), dismissed, Tait v. Ragen, 67 S. Ct. 99, 329 U.S. 755, 91 L. Ed. 651 (1946), appeal dismissed, Memphis Natural Gas Co. v. McCanless, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946).

4. Cooperative Nonprofit Associations.

Defendant organized as a cooperative nonprofit association was not exempt from obtaining certificate of public convenience to operate bus line on the ground that cooperative not organized for profit was exempt from such requirement by virtue of Acts 1935, ch. 42 (T.C.A. § 65-4-101(6)(E)), defining public utilities, since the use of words “any cooperative organization” in that clause applied to classes of organizations indicated by preceding special exemptions and did not refer to organizations chartered under § 48-1101(10) (repealed). Tiger Creek Bus Line v. Tiger Creek Transp. Ass'n, 187 Tenn. 654, 216 S.W.2d 348, 1948 Tenn. LEXIS 480 (1948).

5. Gas Companies.

Where charter of gas company gave company power to operate as a public utility it was subject to supervision and control of state public utilities commission (now authority). Memphis Natural Gas Co. v. McCanless, 183 Tenn. 635, 194 S.W.2d 476, 1946 Tenn. LEXIS 247 (1946), cert. denied, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946), dismissed, Tait v. Ragen, 67 S. Ct. 99, 329 U.S. 755, 91 L. Ed. 651 (1946), appeal dismissed, Memphis Natural Gas Co. v. McCanless, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946).

Federal Natural Gas Act (15 U.S.C., § 717a) did not bar state control of gas company engaged as a public utility in intrastate business. Memphis Natural Gas Co. v. McCanless, 183 Tenn. 635, 194 S.W.2d 476, 1946 Tenn. LEXIS 247 (1946), cert. denied, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946), dismissed, Tait v. Ragen, 67 S. Ct. 99, 329 U.S. 755, 91 L. Ed. 651 (1946), appeal dismissed, Memphis Natural Gas Co. v. McCanless, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946).

Fact that natural gas company had filed application for control by federal power commission did not affect liability for inspection fees for years prior to filing of application for federal control. Memphis Natural Gas Co. v. McCanless, 183 Tenn. 635, 194 S.W.2d 476, 1946 Tenn. LEXIS 247 (1946), cert. denied, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946), dismissed, Tait v. Ragen, 67 S. Ct. 99, 329 U.S. 755, 91 L. Ed. 651 (1946), appeal dismissed, Memphis Natural Gas Co. v. McCanless, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946).

6. Municipalities.

The municipality may in granting consent make a valid contract by which the company pays it a per cent of the gross receipts. A contract provision as to rates is subject to the regulatory power of the state. Lewis v. Nashville Gas & Heating Co., 162 Tenn. 268, 40 S.W.2d 409, 1930 Tenn. LEXIS 88 (1931).

This section expressly exempts municipalities, and the railroad and public utilities commission has no jurisdiction over a contract between a city and the T.V.A., which fixes electric rates. Memphis Power & Light Co. v. Memphis, 172 Tenn. 346, 112 S.W.2d 817, 1936 Tenn. LEXIS 3 (1937).

7. Telephone and Telegraph Companies.

Telephone companies fall within the provisions of the statutes regulating public utilities. Breeden v. Southern Bell Tel. & Tel. Co., 199 Tenn. 203, 285 S.W.2d 346, 1955 Tenn. LEXIS 446 (1955).

Telephone and telegraph companies are in a strict sense common carriers and are comparable with railroad companies and other similar utilities. Breeden v. Southern Bell Tel. & Tel. Co., 199 Tenn. 203, 285 S.W.2d 346, 1955 Tenn. LEXIS 446 (1955).

8. Water Companies.

Where the charter of a water company conferred such powers and imposed such duties as to create a public utility, the property of such company was subject to be taxed and regulated by the railroad and public utilities commission (now authority) even though it had not exercised all the privileges granted by its charter but merely maintained lines through which the city furnished water. Nashville Water Co. v. Dunlap, 176 Tenn. 79, 138 S.W.2d 424, 1939 Tenn. LEXIS 102 (1940).

Collateral References.

Airport as public utility for which municipality may incur debt. 83 A.L.R. 347, 99 A.L.R. 173, 155 A.L.R. 1026.

Charter, conclusiveness of, as regards character of corporation as a public utility corporation. 119 A.L.R. 1019.

Community antenna television systems (CATV) as subject to jurisdiction of state public utility or service commission. 61 A.L.R.3d 1150.

Cotton industry as affected with a public interest. 23 A.L.R. 1478.

Incidental service to members of the public as making individual or corporation whose principal business is of a different nature a public utility. 18 A.L.R. 764, 93 A.L.R. 248.

Irrigation company as a public utility. 8 A.L.R. 268, 15 A.L.R. 1227.

Municipal purchase, construction or repair of public utility, what are “public utilities” within provisions relating to. 9 A.L.R. 1033, 35 A.L.R. 592.

Sewer as public utility within constitutional or statutory provision relating to purchase or repair of public utility by municipal corporation. 9 A.L.R. 1034, 35 A.L.R. 592.

Telephones, what companies are within Public Utilities Act. 21 A.L.R. 1162, 132 A.L.R. 1495.

Validity of imposition, by state regulation, of natural gas priorities. 84 A.L.R.3d 541.

65-4-102. Railroads excluded.

None of the provisions of this chapter and none of the powers conferred upon the commission shall apply to any railroad, whether operated by an incorporated company or individual, which is operated in this state and which is regulated and governed by chapter 3 of this title.

Acts 1919, ch. 49, § 3; Shan. Supp., § 3059a86; mod. Code 1932, § 5449; Acts 1939, ch. 130, § 1; C. Supp. 1950, § 5449; modified; T.C.A. (orig. ed.), § 65-402; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4.

NOTES TO DECISIONS

1. Construction.

The exclusion of railroads from the provisions of this chapter does not remove railroad companies from the definition of “public utilities” as used in other chapters of this title. Louisville & N. R. Co. v. Tennessee Public Service Com., 542 S.W.2d 813, 1976 Tenn. LEXIS 523 (Tenn. 1976).

65-4-103. Interstate commerce excepted.

This chapter shall be construed to apply to and affect only public utilities which furnish products or services within the state, and this chapter shall not be construed to extend to any public utility engaged in interstate commerce the government or regulation of which jurisdiction is vested in the interstate commerce commission or other federal board or commission.

Acts 1919, ch. 49, § 10; Shan. Supp., § 3059a93; Code 1932, § 5456; T.C.A. (orig. ed.), § 65-403.

Attorney General Opinions. Authority's power to regulate debt issuance by public utilities engaged in interstate commerce, OAG 99-119, 1999 Tenn. AG LEXIS 119 (5/14/99).

NOTES TO DECISIONS

1. In General.

Where a corporation is federally regulated as to volumes and priorities, it would be improper for the local power commission to undertake such regulation, but where the same corporation is not regulated as to prices, the local power commission has jurisdiction to regulate these prices directly. Tennessee Public Service Com. v. Nashville Gas Co., 551 S.W.2d 315, 1977 Tenn. LEXIS 521 (Tenn. 1977), cert. denied, 434 U.S. 904, 98 S. Ct. 301, 54 L. Ed. 2d 191, 1977 U.S. LEXIS 3656 (1977), cert. denied, Nashville Gas Co. v. Tennessee Public Service Com., 434 U.S. 904, 98 S. Ct. 301, 54 L. Ed. 2d 191, 1977 U.S. LEXIS 3656 (1977).

Where the parent corporation was partially regulated by the federal power commission its direct sales to its wholly domestic subsidiary, although part of interstate commerce, were essentially local in nature, and the Tennessee public service commission (now regulatory authority) was not prevented from taking these sales into account in determining the proper rate base and rate structure of the subsidiary. Tennessee Public Service Com. v. Nashville Gas Co., 551 S.W.2d 315, 1977 Tenn. LEXIS 521 (Tenn. 1977), cert. denied, 434 U.S. 904, 98 S. Ct. 301, 54 L. Ed. 2d 191, 1977 U.S. LEXIS 3656 (1977), cert. denied, Nashville Gas Co. v. Tennessee Public Service Com., 434 U.S. 904, 98 S. Ct. 301, 54 L. Ed. 2d 191, 1977 U.S. LEXIS 3656 (1977).

65-4-104. Commission's jurisdiction and control of public utilities.

  1. The commission has general supervisory and regulatory power, jurisdiction, and control over all public utilities, and also over their property, property rights, facilities, and franchises, so far as may be necessary for the purpose of carrying out the provisions of this chapter. However, such general supervisory and regulatory power and jurisdiction and control shall not apply to street railway companies.
    1. Any investor-owned electric power company serving Tennessee customers on the western side of the Mississippi River shall provide those Tennessee customers with the same level of service and charge the same rates as the power company provides and charges similarly situated customers in Arkansas.
    2. Upon a finding that an investor-owned electric power provider has engaged in unjust or unreasonable discrimination in service or rates in violation of subdivision (b)(1), the commission may order changes in the provider's services or rates to those Tennessee customers as necessary to enforce subdivision (b)(1).
    3. The commission's jurisdiction over an investor-owned electric power company serving Tennessee customers on the western side of the Mississippi River is limited to hearing a complaint alleging a violation of subdivision (b)(1) and granting appropriate relief as provided in subdivision (b)(2).
    4. Nothing in this subsection (b) removes the duty of any investor-owned electric power company to pay any required inspection and supervision fee to the commission as required by part 3 of this chapter.
    5. Nothing in this subsection (b) removes the duty of any investor-owned electric power company to pay its otherwise appropriate Tennessee state or local taxes.

Acts 1919, ch. 49, § 3; Shan. Supp., § 3059a85; Code 1932, § 5447; Acts 1943, ch. 51, § 1; C. Supp. 1950, § 5447; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-404; Acts 1995, ch. 305, § 20;  2017, ch. 94, § 51; 2017, ch. 98, § 1.

Compiler's Notes. For the Preamble to the act concerning rates of investor-owned utility companies, please refer to Acts 2017, ch. 98.

Amendments. The 2017 amendment by ch. 94 substituted “The commission” for “The authority” at the beginning of (a).

The 2017 amendment by ch. 98 added (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2017, ch. 98, § 2. July 1, 2017.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Electricity, § 2; 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4; 21 Tenn. Juris., Public Service Commissions § 5.

Law Reviews.

Symposium -- Memphis in the Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011).

NOTES TO DECISIONS

1. Constitutionality.

Regulation of rates is within the police power. Lewis v. Nashville Gas & Heating Co., 162 Tenn. 268, 40 S.W.2d 409, 1930 Tenn. LEXIS 88 (1931).

The statute giving power to fix rates is constitutional. McCollum v. Southern Bell Tel. & Tel. Co., 163 Tenn. 277, 43 S.W.2d 390, 1931 Tenn. LEXIS 112 (1931).

2. Legislative Purpose.

The main subject of the Acts 1919, is that of control of utilities, and municipal charter rights are touched on, if at all, only incidentally and inferentially. Franklin Light & Power Co. v. Southern Cities Power Co., 164 Tenn. 171, 47 S.W.2d 86, 1931 Tenn. LEXIS 23 (1932).

3. Nature and Power of Commission.

The commission (now authority) is not a “court” within the meaning of the constitution. In re Cumberland Power Co., 147 Tenn. 504, 249 S.W. 818, 1922 Tenn. LEXIS 62 (1923).

The commission (now authority) is without power to require a utility to surrender valuable property rights as a condition to the making and hearing of an application for a certificate. Tennessee Eastern Electric Co. v. Hannah, 157 Tenn. 582, 12 S.W.2d 372, 1928 Tenn. LEXIS 224 (1928).

The commission (now authority) is not a court but an administrative body. McCollum v. Southern Bell Tel. & Tel. Co., 163 Tenn. 277, 43 S.W.2d 390, 1931 Tenn. LEXIS 112 (1931).

The Public Service Commission (now authority) has the authority to require a utility to use projected excess earnings to expand or improve service to its customers. Tennessee Cable Television Ass'n v. Tennessee Public Service Com., 844 S.W.2d 151, 1992 Tenn. App. LEXIS 583 (Tenn. Ct. App. 1992).

4. Municipalities.

Municipal ordinances regulating rates were superseded upon resumption by the state of the power to regulate rates. Lewis v. Nashville Gas & Heating Co., 162 Tenn. 268, 40 S.W.2d 409, 1930 Tenn. LEXIS 88 (1931).

Municipal corporations are not deprived of the power to grant or refuse local franchises to public utilities. Franklin Light & Power Co. v. Southern Cities Power Co., 164 Tenn. 171, 47 S.W.2d 86, 1931 Tenn. LEXIS 23 (1932).

5. Street Railroads.

The provisions of this section extend to street railroads. Memphis v. Enloe, 141 Tenn. 618, 214 S.W. 71, 1919 Tenn. LEXIS 15 (1919).

6. Telephone Companies.

The general assembly in creating the commission (now authority) has determined that the commission (now authority) shall in the first instance have jurisdiction to determine whether or not a telephone company is to give service to a given area. Breeden v. Southern Bell Tel. & Tel. Co., 199 Tenn. 203, 285 S.W.2d 346, 1955 Tenn. LEXIS 446 (1955).

Before a telephone company can be required to extend its services into a community the commission (now authority) must hear the matter and grant the necessary certificate. Breeden v. Southern Bell Tel. & Tel. Co., 199 Tenn. 203, 285 S.W.2d 346, 1955 Tenn. LEXIS 446 (1955).

Collateral References.

Federal control as affecting power of public service commission (now authority). 4 A.L.R. 1703, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Motor trucks or buses, jurisdiction over carriers transporting by. 1 A.L.R. 1460, 9 A.L.R. 1011, 51 A.L.R. 820, 103 A.L.R. 268.

Municipal corporations owning or operating a public utility as within public utility acts. 10 A.L.R. 1432, 18 A.L.R. 946.

Street railways, power of public service commission to regulate. 5 A.L.R. 36, 39 A.L.R. 1517.

Validity of imposition, by state regulation, of natural gas priorities. 84 A.L.R.3d 541.

65-4-105. Extent of regulatory power of commission.

  1. In addition to the power conferred by this chapter on the commission, it shall possess with reference to all public utilities within its jurisdiction all the other powers conferred with reference to railroads regulated by the department of transportation or transportation companies regulated by the department of safety as provided by chapters 3 and 5 of this title.
  2. Where any existing contract between any public utility and any municipality specifies that particular things, other than charging certain rates, tolls or fares, shall continue to be done by such public utility, or the nature, kind, and quality of any particular service to be rendered by the public utility to the municipality or its people, nothing in this section nor in this title shall be construed to authorize the commission to excuse such public utility from continuing to do such specified things or from continuing to render and perform the service of at least the nature, kind and quality specified in any such existing contract; but, all these things involving the cost of the service shall be taken into consideration by the commission in exercising its power to pass upon the reasonableness of any rate, fare, or charge hereafter to be made by such public utility.
  3. No provision of this section or of this title shall be construed to alter or impair any existing contract between any public utility and any municipality whereby it has been agreed that any payments of money, in addition to proper ad valorem taxes, shall be made by any such public utility to or for the benefit of any such municipality or its people, but all such things, involving the cost of the service, shall be taken into consideration by the commission in exercising its power to pass upon the reasonableness of any rate, fare or charge hereafter to be made by such public utility.
  4. When any public utility regulated by the commission supplies its services to consumers who use solar or wind-powered equipment as a source of energy, such public utility shall not discriminate against such consumers by its rates, fees or charges or by altering the availability or quality of energy. Any consumer who uses solar, wind power, or other auxiliary source of energy shall install and operate the equipment, property, or appliance for such energy source in compliance with any state or local code or regulation applicable to the safe operation of such equipment, property, or appliance.
  5. Any franchise payment or other payment for the use of public streets, alleys or other public places or any license, privilege, occupation or excise tax payment, which after February 24, 1961, may be made by a utility to a municipality or other political subdivision, except such taxes as are presently provided for under existing statutes and except such franchise payment or other payments as are presently exacted from the utility pursuant to the terms of any existing franchise or other agreement, shall, insofar as practicable, be billed pro rata to the utility customers receiving local service within the municipality or political subdivision receiving such payments, and shall not otherwise be considered by the commission in fixing the rates and charges of the utility.
  6. The commission shall further have jurisdiction over all utility districts created pursuant to Tennessee law, to the extent that the exercise of such jurisdiction is provided by title 7, chapter 82 and Acts 1951, ch. 51 as provided in this chapter or as amended.

Acts 1919, ch. 49, § 11; Shan. Supp., § 3059a94; Code 1932, § 5457; Acts 1961, ch. 123, § 1; 1973, ch. 249, § 2; 1980, ch. 756, § 2; T.C.A. (orig. ed.), § 65-405; Acts 1995, ch. 305, §§ 15, 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Avoiding rate discrimination against solar or wind power users, § 65-5-104.

Municipal public works, discrimination against consumers using auxiliary energy sources, § 7-34-114.

Law Reviews.

Local Government Law — 1961 Tennessee Survey (Eugene Puett), 14 Vand. L. Rev. 1335 (1961).

NOTES TO DECISIONS

1. Purpose.

The legislative purpose in enacting the 1961 amendment was to permit franchise payments made by a utility to be charged to its customers residing in the city where the payments were exacted and not require nonresident subscribers in the state to bear this burden through increased rates when they received none of the municipal benefits. Memphis v. Southern Bell Tel. & Tel. Co., 316 F.2d 535, 1963 U.S. App. LEXIS 5497 (6th Cir. Tenn. 1963).

2. Application.

The 1961 amendment to this section providing that, except such franchise payments presently exacted from utilities, franchise payments to municipalities by utilities for use of public streets and alleys be billed pro rata to customers receiving service within the municipality was not restricted to additional franchise payments nor applicable only to cities which did not require payment for franchises from utilities prior to 1961; instead, it applied prospectively to franchises or agreements entered into after the effective date, and telephone company could bill its city customers pro rata for payments made under a new franchise granted after the amendment became effective. Memphis v. Southern Bell Tel. & Tel. Co., 316 F.2d 535, 1963 U.S. App. LEXIS 5497 (6th Cir. Tenn. 1963).

Collateral References.

Capitalizing or funding bond discount. 72 A.L.R. 1232.

Change of rates by public utility while another rate is undetermined. 16 A.L.R. 1219.

Discrimination in operation of municipal plant. 50 A.L.R. 126.

Federal control of public utility, rates during. 4 A.L.R. 1703, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Fixtures or accessories or incidental service, constitutionality of requiring public utilities to supply, free of charge or for fixed charges. 115 A.L.R. 1162.

Judicial relief from contract rates which have become inadequate. 6 A.L.R. 1659, 10 A.L.R. 1335.

Minimum public utility rates, power of state to fix. 132 Or. 479, 285 P. 201, 1930 Ore. LEXIS 192, 68 A.L.R. 1002.

Municipally owned or operated public utility, power of state or public service commission to regulate rates of. 76 A.L.R. 851, 127 A.L.R. 94.

Natural resources, allowance for amortization in respect of, in fixing rates for public utility. 91 A.L.R. 1413.

Patron's right to question reasonableness of public utility rate authorized by legislature. 12 A.L.R. 404.

Profit factor in determining rates for municipally owned or operated public utility. 90 A.L.R. 700.

Public utility acts, applicability of, to municipal corporation operating water plant. 10 A.L.R. 1432, 18 A.L.R. 946.

Right to fix new rate for public utility where court sets aside rate fixed by commission as confiscatory. 57 A.L.R. 146.

Right to make charge for telephone or other public utility service in excess of that fixed by public utility. 73 A.L.R. 1194.

“Similar,” meaning of word, in statute, as to rates. 17 A.L.R. 97.

State regulation of rates to consumers of electricity transported across state lines for light or power purposes. 7 A.L.R. 1094.

Street franchise, power of municipality to regulate rates of public utility which continues service after expiration of. 112 A.L.R. 640.

Validity of imposition, by state regulation, or natural gas priorities. 84 A.L.R.3d 541.

Valuation for rate making as affected by advance in price conditions due to World War. 20 A.L.R. 555.

Variations of electric utility rates based on quantity used. 67 A.L.R. 821.

65-4-106. Construction of chapter.

This chapter shall not be construed as being in derogation of the common law, but shall be given a liberal construction, and any doubt as to the existence or extent of a power conferred on the commission by this chapter or chapters 1, 3 and 5 of this title shall be resolved in favor of the existence of the power, to the end that the commission may effectively govern and control the public utilities placed under its jurisdiction by this chapter.

Acts 1919, ch. 49, § 12; Shan. Supp., § 3059a95; Code 1932, § 5458; T.C.A. (orig. ed.), § 65-406; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

NOTES TO DECISIONS

1. Legislative Purpose.

This section is a legislative directive to construe the utility act in favor of the power of the commission (now authority). Breeden v. Southern Bell Tel. & Tel. Co., 199 Tenn. 203, 285 S.W.2d 346, 1955 Tenn. LEXIS 446 (1955).

2. Liberal Construction.

A liberal construction rather than a narrow construction will be given to the powers of the public service commission (now authority). Briley v. Cumberland Water Co., 215 Tenn. 718, 389 S.W.2d 278, 1965 Tenn. LEXIS 644 (1965).

65-4-107. Approval of privilege or franchise.

  1. No privilege or franchise hereafter granted to any public utility by the state or by any political subdivision of the state shall be valid until approved by the commission, such approval to be given when, after hearing, the commission determines that such privilege or franchise is necessary and proper for the public convenience and properly conserves the public interest, and the commission shall have power, if it so approves, to impose such conditions as to construction, equipment, maintenance, service or operation as the public convenience and interest may reasonably require; provided, however, that nothing contained in this chapter shall be construed as applying to the laying of sidings, sidetracks, or switchouts, by any public utility, and it shall not be necessary for any such public utility to obtain a certificate of convenience from the commission for such purpose.
  2. All terms, conditions, obligations, and rights of a privilege or franchise approved by the commission for the provision of natural gas service shall remain in effect until approval of a subsequent privilege or franchise by the commission.

Acts 1919, ch. 49, § 7; Shan. Supp., § 3059a90; Code 1932, § 5453; T.C.A. (orig. ed.), § 65-407; Acts 1995, ch. 305, § 20; 2016, ch. 645, § 1; 2017, ch. 94, § 51.

Amendments. The 2016 amendment added (b).

The 2017 amendment substituted “the commission” for “the authority” throughout.

Effective Dates. Acts 2016, ch. 645, § 4. March 23, 2016.

Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, § 3.

Law Reviews.

Social Performance of Public Utilities: Effects of Monopoly and Competition, 17 Tenn. L. Rev. 308 (1942).

The Indeterminate Permit for Public Utilities in Tennessee (Henry B. Witham), 6 Tenn. L. Rev. 1 (1927).

NOTES TO DECISIONS

1. Constitutionality.

The authority given the commission (now regulatory authority) to approve or disapprove grants of franchises by a municipality does not create a monopoly contrary to Tenn. Const., art. I, § 22. Holston River Electric Co. v. Hydro Electric Corp., 17 Tenn. App. 122, 66 S.W.2d 217, 1933 Tenn. App. LEXIS 50 (Tenn. Ct. App. 1933).

2. Legislative Purpose.

The provision making approval of municipal franchises by the public utilities commission (now authority) a condition precedent to the validity of any such franchise cannot be considered as having been adopted or discarded by the general assembly without plainly and deliberately expressing an intention to do so. Holston River Electric Co. v. Hydro Electric Corp., 166 Tenn. 662, 64 S.W.2d 509, 1933 Tenn. LEXIS 134 (1933).

3. Regulation of Franchises by Commission.

This statute does not obviate the necessity of the approval by the commission (now authority) of the grant of a franchise by a municipality. Holston River Electric Co. v. Hydro Electric Corp., 166 Tenn. 662, 64 S.W.2d 509, 1933 Tenn. LEXIS 134 (1933).

The elemental power of a public utility must be obtained from the state public service commission (now regulatory authority) while the privilege of occupying the streets, roads and public ways of cities or counties must be obtained from the local political subdivision in which the utility operates. Briley v. Cumberland Water Co., 215 Tenn. 718, 389 S.W.2d 278, 1965 Tenn. LEXIS 644 (1965).

4. Control of Franchises by Municipality.

Municipal corporations are not deprived of the power to grant or refuse local franchises to public utilities. Franklin Light & Power Co. v. Southern Cities Power Co., 164 Tenn. 171, 47 S.W.2d 86, 1931 Tenn. LEXIS 23 (1932).

Though electric current is delivered and metered at point outside municipal limits, and is carried by a creamery, over its line of wires to its plant within same, the supplying company is doing business within such municipality. Holston River Electric Co. v. Hydro Electric Corp., 17 Tenn. App. 122, 66 S.W.2d 217, 1933 Tenn. App. LEXIS 50 (Tenn. Ct. App. 1933).

Permission of local governing authority to extend lines, etc., as provided by § 65-2706 (now § 65-27-106) is not a condition precedent to the hearing provided by this section but is a condition precedent to such extension. Briley v. Cumberland Water Co., 215 Tenn. 718, 389 S.W.2d 278, 1965 Tenn. LEXIS 644 (1965).

5. Certificate of Public Convenience And Necessity.

Certificate of Public Convenience and Necessity (CCN)order did not impose conditions precedent because the language of the order was a summary of the relevant procedural background and details of the utility's petition and not a mandate by the Tennessee Regulatory Authority (TRA); while the statute allowed the TRA, in its discretion, to impose conditions upon the grant of CCN's, the order does not impose any such conditions. Tenn. Wastewater Sys. v. Tenn. Regulatory Auth., — S.W.3d —, 2016 Tenn. App. LEXIS 461 (Tenn. Ct. App. June 30, 2016).

Collateral References.

Abandonment of line, public service commission's power with respect to. 5 A.L.R. 55, 39 A.L.R. 1517.

Alteration or extension of passenger service, power of public service commission in respect to. 70 A.L.R. 841.

Baggage, regulations as to checking and handling of. 21 A.L.R. 323.

Motor trucks or buses, jurisdiction of public service commission over carriers transporting by. 1 A.L.R. 1460, 9 A.L.R. 1011, 51 A.L.R. 820, 103 A.L.R. 268.

Public service commission's power to require public utility to extend gas service into new territory. 31 A.L.R. 333.

Street franchise, right of city on expiration of, by limitation to oust utility or require removal of its equipment without first securing consent or approval of public service commission. 112 A.L.R. 630.

65-4-108. Appeal to commission from local regulation.

Any such public utility may appeal to the commission from any order or regulation made by any local, municipal, or county governing body, and the commission is given power and jurisdiction to hear such appeal and to determine the matter in question on the merits and make such order in the premises as may be just and reasonable.

Acts 1919, ch. 49, § 8; Shan. Supp., § 3059a91; Code 1932, § 5454; T.C.A. (orig. ed.), § 65-408; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority” twice.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, § 3; 25 Tenn. Juris., Water Companies and Waterworks, § 3.

NOTES TO DECISIONS

1. Proper Relief.

Where appellant's only complaint was that the implementation of an ordinance would require it to attach its lines to the subdivision lines without a contract for the extension of its services and without authority from the public service commission (now authority), its relief was to be found under the statute and not by an injunction suit. Brentwood Water Co. v. Brentwood, 491 S.W.2d 368, 1973 Tenn. LEXIS 423 (Tenn. 1973).

65-4-109. Issuance of stocks or other evidences of indebtedness.

No public utility shall issue any stocks, stock certificates, bonds, debentures, or other evidences of indebtedness payable in more than one (1) year from the date thereof, until it shall have first obtained authority from the commission for such proposed issue. It shall be the duty of the commission after hearing to approve any such proposed issue maturing more than one (1) year from the date thereof upon being satisfied that the proposed issue, sale and delivery is to be made in accordance with law and the purpose of such be approved by the commission.

Acts 1919, ch. 49, § 6; Shan. Supp., § 3059a89; Code 1932, § 5452; T.C.A. (orig. ed.), § 65-409; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Gas Companies, § 7; 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4.

Attorney General Opinions. Authority's power to regulate debt issuance by public utilities engaged in interstate commerce, OAG 99-119; 1999 Tenn. AG LEXIS 119 (5/14/99).

Collateral References.

Bond discount, control over issue of securities to capitalize on fund. 72 A.L.R. 1232.

Regulating issuance of securities by public utilities through public service commission. 41 A.L.R. 889.

Street railway companies, public service commission's power as to fiscal management of, and issuance of bonds by. 5 A.L.R. 66, 39 A.L.R. 1517.

65-4-110. Depreciation account for protection of holders of securities.

The commission has the power, after hearing, upon notice, by order in writing, to require every public utility as defined in § 65-4-101 to carry for the protection of stockholders, bondholders or holders of securities a proper and adequate depreciation account in accordance with such rules, regulations, and forms of account, as the commission may prescribe. The commission shall have power to ascertain and determine, and by order in writing, after hearing, fix proper and adequate rates of depreciation of the property of each public utility, and each public utility shall conform its depreciation accounts to the rates so ascertained, determined, and fixed, and shall set aside the moneys so provided for out of earnings and carry the same in a depreciation fund. The income from investments of moneys in such fund shall likewise be carried in such fund. This depreciation fund shall not be expended otherwise than for depreciation, improvements, new constructions, extensions, or additions to the property of such public utility, unless the commission shall by order in writing give permission to the public utility to divert the fund to purposes other than those named in this section.

Acts 1919, ch. 49, § 5; Shan. Supp., § 3059a88; mod. Code 1932, § 5451; T.C.A. (orig. ed.), § 65-410; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “The commission” for “The authority” and “the commission” for “the authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Collateral References.

Natural resources, allowance for depletion in respect of, in fixing rates. 91 A.L.R. 1413.

65-4-111. Uniform system of accounting — Reports.

  1. The commission has the power, after hearing, upon notice, by order in writing, to require every public utility as defined in § 65-4-101 to keep its books, records, and accounts so as to afford an intelligent understanding of the conduct of its business, and to that end to require every such public utility of the same class to adopt a uniform system of accounting. The accounting system shall conform, where applicable, to any system adopted or approved by the interstate commerce commission.
  2. The commission also has the power to require each such utility to furnish annually, or at such other times as the commission may require, a detailed report of finances and operations as shown by such system of accounts.

Acts 1919, ch. 49, § 5; Shan. Supp., § 3059a88; Code 1932, § 5451; T.C.A. (orig. ed.), § 65-411; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “The commission” for “The authority” at the beginning of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-112. Utilities leasing, merging, or consolidating property.

  1. No lease of its property, rights, or franchises, by any such public utility, and no merger or consolidation of its property, rights and franchises by any such public utility with the property, rights and franchises of any other such public utility of like character shall be valid until approved by the commission, even though power to take such action has been conferred on such public utility by the state or by any political subdivision of the state.
  2. Any public utility as defined in § 65-4-101, may, without the approval or consent of the state or the commission, or any other agency of the state, sell, lease, or otherwise dispose of any of its property, including, but without limitation, franchises, rights, facilities, and other assets, and its capital stock, to any of the nonutilities defined in § 65-4-101.

Acts 1919, ch. 49, § 6; Shan. Supp., § 3059a89; Code 1932, § 5452; Acts 1935, ch. 42, § 2; C. Supp. 1950, § 5448.1; impl. am. Acts 1955, ch. 69, § 1; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority” in (a) and (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4; 21 Tenn. Juris., Public Service Commissions, § 3.

65-4-113. Transfer of authority to provide utility services.

  1. No public utility, as defined in § 65-4-101, shall transfer all or any part of its authority to provide utility services, derived from its certificate of public convenience and necessity issued by the commission, to any individual, partnership, corporation or other entity without first obtaining the approval of the commission.
  2. Upon petition for approval of the transfer of authority to provide utility services, the commission shall take into consideration all relevant factors, including, but not limited to, the suitability, the financial responsibility, and capability of the proposed transferee to perform efficiently the utility services to be transferred and the benefit to the consuming public to be gained from the transfer. The commission shall approve the transfer after consideration of all relevant factors and upon finding that such transfer furthers the public interest.
  3. Following approval of the transfer pursuant to this section, the transferee shall be granted full authority to provide the transferred services subject to the continuing regulation of the commission. The transferor shall no longer have any authority to provide the transferred services, but shall retain authority to provide other services, if any are retained, which were not included in such transfer.
  4. This section shall not apply to any transfers falling under § 65-4-112. This section shall apply to all other utility service transfers, including, but not limited to, the transfer of the authority to provide communications services held by a land line telephone company pursuant to § 65-30-105(h).
  5. To the extent transferees receiving authority under this section would be prohibited from performing the service by § 65-30-104, § 65-30-105(a), or § 65-30-105(f)(2), those sections are declared inapplicable.

Acts 1993, ch. 23, § 1; 1994, ch. 545, § 1; 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-113, concerning service requirements, was transferred to § 65-4-114 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “the commission” for “the authority” twice in (a) and in the first sentences of (b) and (c); and substituted “The commission” for “The authority” at the beginning of the last sentence in (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-114. Service requirements.

The commission has the power, after hearing, upon notice, by order in writing, to require every public utility, as defined in § 65-4-101, to:

  1. Furnish safe, adequate, and proper service and to keep and maintain its property and equipment in such condition as to enable it to do so; and
  2. Establish, construct, maintain, and operate any reasonable extension of its existing facilities where, in the judgment of the commission, such extension is reasonable and practicable, and will furnish sufficient business to justify the construction, operation, and maintenance of the same, and when the financial condition of the public utility affected reasonably warrants the original expenditure required in making such extension, or to abandon any service when, in the judgment of the commission, the public welfare no longer requires the same.

Acts 1919, ch. 49, § 5; Shan. Supp., § 3059a88; Code 1932, § 5451; T.C.A. (orig. ed.), § 65-414; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-113; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Administrative Law — 1956 Tennessee Survey (James B. Earle), 9 Vand. L. Rev. 913 (1956).

NOTES TO DECISIONS

1. Action by Commission (now Authority) as Prerequisite to Service.

Before a telephone company can be required to serve the people of a community the commission (now authority) must hear the matter and grant the necessary certificate therein. Breeden v. Southern Bell Tel. & Tel. Co., 199 Tenn. 203, 285 S.W.2d 346, 1955 Tenn. LEXIS 446 (1955).

Court could not grant mandatory injunction ordering telephone company to extend its service into particular area where the commission (now authority) had not granted the necessary authority. Breeden v. Southern Bell Tel. & Tel. Co., 199 Tenn. 203, 285 S.W.2d 346, 1955 Tenn. LEXIS 446 (1955).

2. Requirement of Municipal Franchise.

Before any corporation may furnish electricity within the territory of a municipality it must have the permission of that municipality in the form of a franchise even where the corporation has been serving the area before it became a part of the municipality. Franklin Power & Light Co. v. Middle Tennessee Electric Membership Corp., 222 Tenn. 182, 434 S.W.2d 829, 1968 Tenn. LEXIS 421 (1968).

3. Territory.

The word “territory,” as used in § 65-4-201, includes all the area within a territory a public utility has offered and become liable to serve whether the public utility has physical facilities in every part thereof or not. Peoples Tel. Co. v. Tennessee Public Service Com., 216 Tenn. 608, 393 S.W.2d 285, 1965 Tenn. LEXIS 605 (1965).

5. Certificate of Public Convenience And Necessity.

Decision of the Tennessee Regulatory Authority (TRA) to revoke a public utility's Certificate of Public Convenience and Necessity was within the authority granted the TRA and not a violation of the statute; the statute does not mandate that the TRA use its authority to require a public utility to provide services in all circumstances, and inherent in the statutory framework is discretion granted to the TRA in the exercise its power. Tenn. Wastewater Sys. v. Tenn. Regulatory Auth., — S.W.3d —, 2016 Tenn. App. LEXIS 461 (Tenn. Ct. App. June 30, 2016).

Collateral References.

Abandonment of line, public service commission's power with respect to. 5 A.L.R. 55, 39 A.L.R. 1517.

Bank which has acquired a public service plant as bound to continue its operation. 8 A.L.R. 248.

Contract of public service corporation which tends to impair ability of, to serve public, validity of. 58 A.L.R. 804.

Cost involved as affecting duty to extend electrical service or supply individual applicant. 58 A.L.R. 537.

Danger to person or property as affecting right of gas company to discontinue service upon failure of consumer to comply with reasonable and valid regulations. 132 A.L.R. 914.

Discontinuance of one of several different kinds of service. 21 A.L.R. 578.

Duplicate service, duty of public utility as to. 52 A.L.R. 1111.

Duty to furnish telegraph or telephone service to privately wired or equipped building. 56 A.L.R. 794.

Economical manner of using the service, duty to instruct patron as to, or give him equivalent concession. 38 A.L.R. 1065.

Extension of water system, right to compel municipality to make. 48 A.L.R.2d 1222.

Fixtures to be used in connection with its service, right of public service corporation to prescribe. 37 A.L.R. 1367.

Implied obligation with respect to extent of service by gas company. 21 A.L.R. 671.

Mandamus to compel service by electric company. 83 A.L.R. 950.

Public service commission's power to require public utility to extend gas service into new territory. 31 A.L.R. 333.

Resale, right of electrical company to discriminate against a concern which desires service for. 12 A.L.R. 327, 112 A.L.R. 773.

Right of public utility company to discontinue its entire service. 11 A.L.R. 252.

Right of public utility corporation to refuse its service because of collateral matter not related to that service. 55 A.L.R. 771.

Right of user of public utility to discontinue use. 112 A.L.R. 230.

Service contract by public utility, in consideration of conveyance of property, by individual or private corporation, as affected by public utility acts. 11 A.L.R. 460, 41 A.L.R. 257.

Street franchise, right of utility on expiration of, by limitation, to discontinue service. 112 A.L.R. 631.

Suspension of service temporarily, duty of public utility to notify patron in advance of. 52 A.L.R. 1078.

65-4-115. Unjust practices and unsafe services prohibited.

No public utility shall adopt, maintain, or enforce any regulation, practice, or measurement which is unjust, unreasonable, unduly preferential or discriminatory, nor shall any public utility provide or maintain any service that is unsafe, improper, or inadequate, or withhold or refuse any service which can reasonably be demanded and furnished when ordered by the commission.

Acts 1919, ch. 49, § 6; Shan. Supp., § 3059a89; Code 1932, § 5452; T.C.A. (orig. ed.), § 65-422; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-114; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-115, concerning penalties for violations of this chapter, was transferred to § 65-4-116 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “the commission” for “the authority” at the end of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4.

NOTES TO DECISIONS

1. Injunctive Relief.

A state court has no jurisdiction in proceeding for injunction where the moving party alleges unfair labor practices or where the facts reasonably bring the controversy within the provisions of the Taft-Hartley Act or where the controversy, if not prohibited by the federal act, may reasonably be deemed to come within the protection of that act. Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S. Ct. 480, 99 L. Ed. 546, 1955 U.S. LEXIS 1455 (1955). This case was cited in Teamsters, Chauffeurs, Helpers & Taxicab Drivers v. Kerrigan Iron Works, Inc., 353 U.S. 968, 77 S. Ct. 1055, 1 L. Ed. 2d 1133, 1957 U.S. LEXIS 1670 (1957), rev'g Kerrigan Iron Works, Inc. v. Cook Truck Lines, Inc., 41 Tenn. App. 467, 296 S.W.2d 379, 1956 Tenn. App. LEXIS 175 (Tenn. Ct. App. 1956), rev'd, Teamsters, Chauffeurs, Helpers & Taxicab Drivers v. Kerrigan Iron Works, Inc., 353 U.S. 968, 77 S. Ct. 1055, 1 L. Ed. 2d 1133, 1957 U.S. LEXIS 1670 (1957), rev'd, Davis v. Seymour, 1 L. Ed. 2d 1133, 77 S. Ct. 1055, 353 U.S. 969, 1957 U.S. LEXIS 851 (1957), and the Teamsters Case was referred to in McCrary v. Aladdin Radio Industries, Inc., 355 U.S. 8, 78 S. Ct. 12, 2 L. Ed. 2d 22, 1957 U.S. LEXIS 1660 (1957), vacating judgment and remanding, Aladdin Industries, Inc. v. Associated Transport, Inc., 42 Tenn. App. 52, 298 S.W.2d 770, 1956 Tenn. App. LEXIS 176 (Tenn. Ct. App. 1956), vacated, McCrary v. Aladdin Radio Industries, Inc., 355 U.S. 8, 78 S. Ct. 12, 2 L. Ed. 2d 22, 1957 U.S. LEXIS 1660 (1957), the state court cases involving injunction proceedings to require carrier to perform its services and prohibiting interference by labor union or members, the latter case involving contempt proceedings for violation of injunction.

2. Services at Picketed Plants.

Contract between carriers and labor union whereby employees of carriers who were members of such union could refuse to cross picket lines or handle “unfair goods” did not exempt such carriers from their contract to render services at picketed plants or excuse carriers or their employees from performing their public duty of carriage. Kerrigan Iron Works, Inc. v. Cook Truck Lines, Inc., 41 Tenn. App. 467, 296 S.W.2d 379, 1956 Tenn. App. LEXIS 175 (Tenn. Ct. App. 1956), rev'd, Teamsters, Chauffeurs, Helpers & Taxicab Drivers v. Kerrigan Iron Works, Inc., 353 U.S. 968, 77 S. Ct. 1055, 1 L. Ed. 2d 1133, 1957 U.S. LEXIS 1670 (1957), rev'd, Davis v. Seymour, 1 L. Ed. 2d 1133, 77 S. Ct. 1055, 353 U.S. 969, 1957 U.S. LEXIS 851 (1957), rev'd without opinion, Teamsters, Chauffeurs, Helpers & Taxicab Drivers v. Kerrigan Iron Works, Inc., 353 U.S. 968, 77 S. Ct. 1055, 1 L. Ed. 2d 1133, 1957 U.S. LEXIS 1670 (1957).

Collateral References.

Civil Rights: racial or religious discrimination in furnishing of public utilities services or facilities. 53 A.L.R.3d 1027.

Contract for a free or reduced service rate with public utility in consideration of a grant of property or privileges, rights and remedies upon nullification thereof by public authority. 14 A.L.R. 252.

Credit, discrimination by public utility company in respect of extension of. 12 A.L.R. 964.

Danger to person or property as affecting right of public utility to discontinue its service upon failure of consumer to comply with reasonable and valid regulations. 132 A.L.R. 914.

Deposit or guaranty, discrimination between its patrons by gas company in regard to furnishing. 43 A.L.R.2d 1262.

Discrimination against a concern which desires service for resale. 12 A.L.R. 327, 112 A.L.R. 773.

Discrimination between property within and that outside governmental districts as to public service or utility rates. 4 A.L.R.2d 595.

Fire service, right of water district or company to charge for. 37 A.L.R. 1511.

Franchise provisions for free or reduced rates as within constitutional or statutory provision prohibiting discrimination. 10 A.L.R. 504, 15 A.L.R. 1200.

Imprisonment for overcharge by public utility. 40 A.L.R. 82.

Minimum monthly bill or fixed monthly service charge, right of public utility to make. 122 A.L.R. 193.

Private contract rates, power of state to change. 9 A.L.R. 1423.

Receiver or trustee in bankruptcy in possession of property, right to shut off supply for refusal by, to pay charges antedating his appointment. 86 A.L.R. 352.

Requiring present owner or occupant to pay for water or light irrespective of person who enjoyed service. 19 A.L.R.3d 1227.

Right to cut off supply of electricity because of nonpayment of service bill or charges. 112 A.L.R. 237.

Right to cut off water supply because of failure to pay sewer service charge. 26 A.L.R.2d 1359.

Right to cut off water supply because of nonpayment of water bill. 28 A.L.R. 472.

Service contract by public utility in consideration of conveyance of property by individual or private corporation as affected by public utility acts. 11 A.L.R. 460, 41 A.L.R. 257.

Special requirements of consumer as giving rise to implied contract by public utility to furnish particular amount of electricity, gas, or water. 13 A.L.R.2d 1233.

Time of payment for service, construction of contract, or regulations regarding. 97 A.L.R. 982.

Validity of service charge for gas meter. 20 A.L.R. 225, 122 A.L.R. 193.

65-4-116. Penalties.

  1. The penalties prescribed by chapter 3 of this title shall be and remain in full force and effect, and shall in every case apply to any public utility within this chapter in the same manner and to the same extent as they are made applicable to and imposed on railroad and transportation companies under chapter 3 of this title.
  2. In determining the amount of the penalty, the appropriateness of the penalty to the size of the business of the person, firm or corporation charged, the gravity of the violation and the good faith of the person, firm or corporation charged in attempting to achieve compliance, after notification of a violation, shall be considered. The amount of the penalty, when finally determined, may be deducted from any sums owing by the state to the person, firm or corporation charged or may be recovered in a civil action in the courts of this state.

Acts 1919, ch. 49, § 9; Shan. Supp., § 3059a92; Code 1932, § 5455; Acts 1969, ch. 156, § 1; T.C.A. (orig. ed.), § 65-423; Acts 1991, ch. 439, §§ 3, 4; 1993, ch. 23, § 1; T.C.A., § 65-4-115.

Compiler's Notes. Former § 65-4-116, concerning the former commission's regulatory powers, was transferred to § 65-4-117 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

65-4-117. Regulatory powers of commission — The 2-1-1 collaborative — Statewide 2-1-1 advisory council.

  1. The commission has the power to:
    1. Investigate, upon its own initiative or upon complaint in writing, any matter concerning any public utility as defined in § 65-4-101;
    2. Request the comptroller of the treasury, from time to time, appraise and value the property of any public utility, as defined in § 65-4-101, whenever in the judgment of the commission such appraisal and valuation shall be necessary for the purpose of carrying out any of the provisions of this chapter. The comptroller of the treasury's office is hereby authorized to make such valuation and in that process may have access to and use any books, documents or records in the possession of any department or board of the state or any political subdivision of the state. For purposes of rate regulation the Tennessee public utility commission has the specific authority to have access to books, documents or records in possession of any department or board of the state or any political subdivision of the state;
    3. After hearing, by order in writing, fix just and reasonable standards, classifications, regulations, practices or services to be furnished, imposed, observed and followed thereafter by any public utility;
    4. After hearing, by order in writing, ascertain and fix adequate and serviceable standards for the measurement of quantity, quality, pressure, voltage, or other condition, pertaining to the supply of the product or service rendered by any public utility, and to prescribe reasonable regulations for examination, test and measurement of such product or service;
    5. After hearing, by order in writing, establish reasonable rules and regulations, specifications and standards, to secure accuracy of all meters and appliances for measurements;
    6. Provide for the examination and test of any appliance used for the measuring of any product or service of a public utility, and by its agents or examiners to enter upon any premises occupied by any public utility, for the purpose of making the examination and test provided for in this chapter; and
    7. Fix the fees to be paid by any consumer or user of any product or service of a public utility, who may apply to the commission for such examination or test to be made. Any consumer or user may have any such appliance tested upon the payment of the fees fixed by the commission, which fees shall be repaid to the consumer or user if the appliance be found defective or incorrect to the disadvantage of the consumer or user, and in that event such fees shall be paid by the public utility concerned.
    1. Not later than December 31, 2004, the commission shall designate an entity to be the 2-1-1 collaborative for the state of Tennessee, such 2-1-1 collaborative being designated in order to be qualified to obtain federal grants relating to 2-1-1 service in Tennessee. The commission may designate an entity to be the 2-1-1 collaborative based on either the petition of an entity seeking such designation, or based on the commission's own motion.
      1. There is created a statewide 2-1-1 advisory council consisting of up to eighteen (18) members who shall be appointed by the commission. The Tennessee Alliance of Information and Referral Systems and the United Ways of Tennessee shall submit recommendations to the commission for potential appointees to the advisory council. The advisory council shall be representative of the various 2-1-1 service stakeholders, including, but not limited to, governmental entities, call centers, non-profit organizations, foundations and corporate entities. In making recommendations for appointment to the advisory council, the Tennessee Alliance of Information and Referral Systems and the United Ways of Tennessee shall do so with a conscious intent of selecting persons who reflect a diverse mixture with respect to race and gender.
      2. The 2-1-1 advisory council is charged with advising and assisting the commission in establishing statewide standards that will ensure that the citizens of this state are served by an efficient and effective 2-1-1 service. To that end, the commission is empowered to promulgate rules and regulations that further define the role of the advisory council, that adopt standards for 2-1-1 service and as may otherwise be necessary to implement this subdivision (b)(2).

Acts 1919, ch. 49, § 4; Shan. Supp., § 3059a87; Code 1932, § 5450; T.C.A. (orig. ed.), § 65-424; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-116; Acts 1995, ch. 305, §§ 17, 20; 2004, ch. 762, § 2; 2009, ch. 275, § 1; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-117, concerning former commission employees, was transferred to § 65-4-118 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Acts 2004, ch. 762, § 1 provided that the title of the act is and may be cited as the “Calling for 2-1-1 Act”.

Acts 2009, ch. 275, § 2 provided that nothing in the act shall be construed as requiring or permitting any state funding relative to 2-1-1 service provision, including, but not limited to, reimbursement of any expenses for advisory council members related to their participation on the advisory council.

Amendments. The 2017 amendment substituted “The commission” for “The authority” and “the commission” for “the authority” throughout; substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in the last sentence of (a)(2); and substituted “the commission's own motion” for “the authority's own motion”  at the end of (b)(1).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339 (1947-1948).

NOTES TO DECISIONS

1. Power to Establish Prices.

The power to establish prices to be charged by public service corporations, whether it is to be exercised by regulation or by contract, resides primarily in the state. Knoxville Gas Co. v. Knoxville, 261 F. 283, 1919 U.S. App. LEXIS 1766 (6th Cir. Tenn. 1919).

The intention of the state to delegate its power to fix prices to be charged by public service corporations must appear in explicit and convincing terms and doubtful expressions are resolved in favor of the state. Knoxville Gas Co. v. Knoxville, 261 F. 283, 1919 U.S. App. LEXIS 1766 (6th Cir. Tenn. 1919).

2. Due Process.

There was no taking requiring due process analysis merely because a utility was limited as to the manner in which it could bill at a given rate by order of the public service commission (now authority). In re Billing & Collection Tariffs of South Cent. Bell, 779 S.W.2d 375, 1989 Tenn. App. LEXIS 233 (Tenn. Ct. App. 1989).

3. Appraisal by Commission.

Any appraisal of a utility by the commission (now authority) is to be paid for out of the public utility account and the utility cannot be required to pay therefor. Cumberland Tel. & Tel. Co. v. Railroad & Public Utilities Com., 287 F. 406, 1921 U.S. Dist. LEXIS 1569 (D. Tenn. 1921).

4. Grant of Franchise.

Approval of commission (now authority) is necessary to make the grant of a franchise by a municipality to a utility company effective. Holston River Electric Co. v. Hydro Electric Corp., 12 Tenn. App. 556, — S.W.2d —, 1930 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1930).

The powers of municipalities to admit public utility companies into their territory are not taken from them and transferred to the commission. Franklin Light & Power Co. v. Southern Cities Power Co., 164 Tenn. 171, 47 S.W.2d 86, 1931 Tenn. LEXIS 23 (1932).

5. Sufficiency of Evidence.

To the extent that the public service commission's (now authority's) final order constituted rate regulation with respect to telephone rates, it was arbitrary and capricious because the commission (now authority) did not have sufficient evidence to evaluate and establish rates. In re Billing & Collection Tariffs of South Cent. Bell, 779 S.W.2d 375, 1989 Tenn. App. LEXIS 233 (Tenn. Ct. App. 1989).

6. Certificate of Public Convenience And Necessity.

Decision of the Tennessee Regulatory Authority (TRA) to revoke a public utility's Certificate of Public Convenience and Necessity was within the authority granted the TRA and not a violation of the statute; the statute does not mandate that the TRA use its authority to require a public utility to provide services in all circumstances, and inherent in the statutory framework is discretion granted to the TRA in the exercise its power. Tenn. Wastewater Sys. v. Tenn. Regulatory Auth., — S.W.3d —, 2016 Tenn. App. LEXIS 461 (Tenn. Ct. App. June 30, 2016).

65-4-118. Consumer advocate division.

  1. There is created a consumer advocate division in the office of the attorney general and reporter which shall consist of various positions which may include attorneys, accountants/financial analysts, support personnel and other personnel as determined by the attorney general and reporter to be appropriate and necessary to accomplish the purposes of this section. As part of the annual appropriations process, the attorney general and reporter may request the general assembly to increase or eliminate positions within the division. The offices of the division shall be located wherever the attorney general and reporter, in the attorney general and reporter's discretion, shall so choose.
    1. The consumer advocate division has the duty and authority to represent the interests of Tennessee consumers of public utilities services. The division may, with the approval of the attorney general and reporter, participate or intervene as a party in any matter or proceeding before the commission or any other administrative, legislative or judicial body and initiate such proceeding, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and the rules of the commission.
    2. If the consumer advocate division concludes that it is without sufficient information to initiate a proceeding, it may petition the commission, after notice to the affected utility, to obtain information from the utility. The petition shall state with particularity the information sought and the type of proceeding that may be initiated if the information is obtained. Additionally, the consumer advocate division may request information from the commission staff, and, if the commission staff is in possession of the requested information, such information shall be provided within ten (10) days of the request.
  2. If the consumer advocate division initiates an appeal of a commission decision, the defense of the appeal shall be the responsibility of the commission through its legal staff.
  3. The consumer advocate division may enter into agreements regarding the nondisclosure of trade secrets or other confidential commercial information obtained by the division.
  4. The attorney general and reporter shall hire, fire, supervise, direct and control the personnel and activities of the consumer advocate division, and the employees of the division shall be employees of the attorney general and reporter for the purposes of title 8, chapter 6.
  5. The attorney general and reporter shall prepare, each year, a budget for the consumer advocate division for the next fiscal year and submit the budget for inclusion in the attorney general and reporter's budget request for review and final approval by the general assembly. Reports on the operations and other matters relative to the consumer advocate division shall be filed by the attorney general and reporter with the general assembly and other governmental entities.
  6. The division shall be funded from the general fund as appropriated in the general appropriations act.

Acts 1921, ch. 107, § 6; Shan. Supp., § 3059a108; Code 1932, § 5468; T.C.A. (orig. ed.), § 65-434; Acts 1982, ch. 788, § 7; 1993, ch. 23, § 1; T.C.A., § 65-4-117; Acts 1994, ch. 913, § 1; 1995, ch. 305, §§ 18-20; 2017, ch. 94, § 51.

Compiler's Notes. The consumer advocate division in the office of the attorney general and reporter, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Former § 65-4-118, concerning complaints referred to former commission employees, was transferred to § 65-4-119 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “commission” for “authority” in subsections (b) and (c).

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Audits of utilities by consumer advocate division, OAG 95-044, 1995 Tenn. AG LEXIS 43 (4/25/95).

Funding of the consumer advocate division, OAG 97-023, 1997 Tenn. AG LEXIS 10 (3/11/97).

NOTES TO DECISIONS

1. Appraisal Paid Out of Public Utility Account.

Any appraisal of a public utility made by the commission (now authority) is to be paid for out of the public account. Cumberland Tel. & Tel. Co. v. Railroad & Public Utilities Com., 287 F. 406, 1921 U.S. Dist. LEXIS 1569 (D. Tenn. 1921).

65-4-119. Complaints referred to employees.

Any person employed by the commission in the consumer advocate division may be assigned by the commission to investigate, hear, and, wherever possible, adjust any individual or general complaint made by any person against any such public utility, wherein its investment, property, service charges, or claims preferred against it, may be involved, and may hear and take proof, and, in the event the commission employee is unable to effect a satisfactory adjustment of any such complaint, then the commission employee shall certify the same to the commission, with recommendations in the premises, whereupon the commission shall, after hearing, make its final order, which shall be binding upon the parties to any such controversy.

Acts 1921, ch. 107, § 6; Shan. Supp., § 3059a109; Code 1932, § 5469; T.C.A. (orig. ed.), § 65-435; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-118; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-119, concerning penalty for noncompliance was transferred to § 65-4-120 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “commission” for “authority”  throughout the section.

NOTES TO DECISIONS

1. Wrong Classification.

Complaint of consumer of electricity that electric company had given him the wrong classification with reference to rates came within the meaning of this section so that jurisdiction was in the commission (now authority), and not the courts, and a demurrer to a bill in chancery asking an order placing complainant in another classification was properly sustained. Trent v. Tennessee Public Service Co., 171 Tenn. 89, 100 S.W.2d 660, 1936 Tenn. LEXIS 65 (1937).

65-4-120. Penalty for noncompliance with authority.

Any public utility which violates or fails to comply with any lawful order, judgment, finding, rule, or requirement of the commission, shall in the discretion of the commission be subject to a penalty of fifty dollars ($50.00) for each day of any such violation or failure, which may be declared due and payable by the commission, upon complaint, and after hearing, and when paid, either voluntarily, or after suit, which may be brought by the commission, shall be placed to the credit of the public utility account.

Acts 1921, ch. 107, § 10; Shan. Supp., § 3059a114; Code 1932, § 5470; T.C.A. (orig. ed.), § 65-436; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-119; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Compiler's Notes. Former § 65-4-120, concerning appeals, was transferred to § 65-4-121 by Acts 1993, ch. 23, § 1, effective Mar. 8, 1993.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

65-4-121. Appeals.

Any appeal, order, decision, ruling or action of the commission affecting any utility as defined in § 65-4-101, exclusive of railroads or common carriers, or any company engaged in the transmission of intelligence or communications, shall be filed in a court of record of competent jurisdiction in the county in which the dispute or matters in controversy arose; and no other nisi prius court of this state shall have jurisdiction to hear and determine such appeal. In the event of an appeal from the judgment or order of circuit or chancery court reviewing such order, or judgment, such appeal shall be prosecuted to the court of appeals in the grand division of the state in which the dispute or matters in controversy arose; and any appeal therefrom shall be perfected to the supreme court.

Acts 1935, ch. 46, § 1; C. Supp. 1950, § 5470.1; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-437; Acts 1993, ch. 23, § 1; T.C.A., § 65-4-120; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority”  preceding “affecting any utility” at the beginning of the section.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, §§ 3, 5.

Law Reviews.

Tennessee Appellate Procedure and the Uniform Administrative Procedures Act (William J. Harbison), 6 Mem. St. U.L. Rev. 291 (1976).

NOTES TO DECISIONS

1. Constitutionality.

In a bill complaining of an order of the commission (now authority) reducing electricity rates, a utility company subject to the provisions of this section could not complain such provisions were unconstitutional where its benefits were equally available to the utility company and the commission (now authority). Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

The classification of this section as to the applicability of its provisions for review is not arbitrary or unreasonable. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

2. Legislative Purpose.

Under this section it was the intention of the general assembly to have every phase of any dispute disposed of by nisi prius courts in the county where the utility's operation is made subject to an order by the commission (now authority). Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

3. Jurisdiction.

The utility involved may as a matter of right invoke the jurisdiction of a chancery or circuit court to have a hearing de novo as to any and all orders and acts of the commission (now authority), and its rights in this regard are not dependent upon the granting by the trial court of the writ of certiorari. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

An appeal attacking the validity of an order of the commission (now authority) in reducing the electricity rates in a certain city which was brought on grounds that the commission (now authority) had not given the required notice of the hearing could not be brought in the chancery court of Davidson county where the dispute or matters in controversy did not arise in such county. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

Where a suit by a utility to review an order by the commission (now authority) reducing electricity rates in a certain city was commenced in the chancery court of the wrong county the commission (now authority) did not waive the question of jurisdiction by appearing and filing an answer. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

Where order of the commission (now authority) in reducing electricity rates in a certain city and also the preliminary steps necessary to the making of the rates fell within the provisions of this section as amounting to an order, decision or ruling affecting certain utility companies, an appeal from either the order of the commission (now authority) or from the action of the commission (now authority) in reference to the preliminary steps was required to be filed in a nisi prius court of the county in which the suit arose. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

4. Review.

Under this section the right to a review of the judgment and decree of the trial court is not confined to the limits of a petition for certiorari. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

The term “appeal” as used in the title of Acts 1939 clearly indicated the right to take the case to a nisi prius court and then to an appellate court to review, i.e., to the court of appeals and then to the supreme court, and the contention that such provisions rendered the act unconstitutional as being broader than its caption was without merit. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

5. Presumption of Validity of Order.

Every order, ruling and decision of the commission (now authority) is presumed to be lawful and in the absence of any evidence to the contrary must be upheld. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

65-4-122. Discriminatory charges — Reasonableness of rates — Unreasonable preferences — Penalties.

  1. If any common carrier or public service company, directly or indirectly, by any special rate, rebate, drawback, or other device, charges, demands, collects, or receives from any person a greater or less compensation for any service within this state than it charges, demands, collects, or receives from any other person for service of a like kind under substantially like circumstances and conditions, and if such common carrier or such other public service company makes any preference between the parties aforementioned, such common carrier or other public service company commits unjust discrimination, which is prohibited and declared unlawful.
  2. Any such corporation which charges, collects, or receives more than a just and reasonable rate of toll or compensation for service in this state commits extortion, which is prohibited and declared unlawful.
  3. It is unlawful for any such corporation to make or give an undue or unreasonable preference or advantage to any particular person or locality, or any particular description of traffic or service, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic or service to any undue or unreasonable prejudice or disadvantage.
  4. Any such corporation that shall be guilty of extortion or unjust discrimination, or of giving to any person or locality, or to any description of traffic an undue or unreasonable preference or advantage, shall be fined in any sum not less than five hundred dollars ($500) nor more than two thousand dollars ($2,000).
  5. An action may be brought by any person against any person or corporation, owning or operating such public service company in Tennessee, for the violation of this section, before any court having jurisdiction to try the same.

Acts 1995, ch. 305, § 137.

65-4-123. Declaration of telecommunications services policy.

The general assembly declares that the policy of this state is to foster the development of an efficient, technologically advanced, statewide system of telecommunications services by permitting competition in all telecommunications services markets, and by permitting alternative forms of regulation for telecommunications services and telecommunications services providers. To that end, the regulation of telecommunications services and telecommunications services providers shall protect the interests of consumers without unreasonable prejudice or disadvantage to any telecommunications services provider; universal service shall be maintained; and rates charged to residential customers for essential telecommunications services shall remain affordable.

Acts 1995, ch. 408, § 1.

Law Reviews.

The Battle for the Book: First-in-the-Nation Ruling Gives Competitors Access to Cover of Bellsouth Directory (Melvin T. Malone and T. Harold Pinkley), 39 No. 7 Tenn. B.J. 18 (2003).

65-4-124. Administrative rules.

  1. All telecommunications services providers shall provide non-discriminatory interconnection to their public networks under reasonable terms and conditions; and all telecommunications services providers shall, to the extent that it is technically and financially feasible, be provided desired features, functions and services promptly, and on an unbundled and non-discriminatory basis from all other telecommunications services providers.
  2. The Tennessee public utility commission shall, at a minimum, promulgate rules and issue such orders as necessary to implement the requirements of subsection (a) and to provide for unbundling of service elements and functions, terms for resale, interLATA presubscription, number portability, and packaging of a basic local exchange telephone service or unbundled features or functions with services of other providers.
  3. These rules shall also ensure that all telecommunications services providers who provide basic local exchange telephone service or its equivalent provide each customer a basic White Pages directory listing, provide access to 911 emergency services, provide free blocking service for 900/976 type services, provide access to telecommunications relay services, provide Lifeline and Link-Up Tennessee services to qualifying citizens of the state and provide educational discounts existing on June 6, 1995.
  4. The granting of applications for certificates of convenience and necessity to competing telecommunications service providers or the adoption of a price regulation plan for incumbent local exchange telephone companies is not dependent upon the promulgation of these rules.

Acts 1995, ch. 408, § 8; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “The Tennessee public utility commission” for “The Tennessee regulatory authority” at the beginning of (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

NOTES TO DECISIONS

1. Directories.

Tennessee regulatory authority was authorized to require that the names and logos of competing telephone companies of a telecommunications company be included on the cover of white pages directories published by an affiliated advertising company on behalf of the telecommunications company. Bellsouth Adver. & Publ. Corp. v. Tenn. Regulatory Auth., 79 S.W.3d 506, 2002 Tenn. LEXIS 331 (Tenn. 2002), cert. denied, BellSouth Adver. & Publ'g Corp. v. Tenn. Regulatory Auth., 537 U.S. 1189, 123 S. Ct. 1256, 154 L. Ed. 2d 1021, 2003 U.S. LEXIS 1128 (2003).

65-4-125. Changes in telecommunications service provider — Regulation — Enforcement — Surety bond or irrevocable letter of credit.

  1. No telecommunications service provider, and no person acting on behalf of any telecommunications service provider, shall designate or change the provider of telecommunications services to a subscriber if the provider or person acting on behalf of the provider knows or reasonably should know that such provider or person does not have the authorization of such subscriber.
  2. No telecommunications service provider, and no person acting on behalf of any telecommunications service provider, shall bill and collect from any subscriber to telecommunications services any charges for services to which the provider or person acting on behalf of the provider knows or reasonably should know such subscriber has not subscribed, or any amount in excess of that specified in the tariff or contract governing the charges for such services.
  3. The Tennessee public utility commission shall establish a consumer complaint form on the Internet for reporting telecommunications service providers or persons acting on their behalf who charge the provider of telecommunications services in violation of this section. Any Internet sites which are maintained by the commission, the general assembly or the governor's office shall contain a link to such form.
  4. The Tennessee public utility commission shall adopt rules implementing this section, including, without limitation, rules specifying the manner in which subscriber authorization may be obtained and confirmed.
  5. The Tennessee public utility commission may entertain and decide complaints and issue orders, including, without limitation, show cause orders, to enforce this section and its rules against any telecommunications service provider, or any person acting on behalf of any telecommunications service provider.
  6. A telecommunications provider or person acting on behalf of a telecommunications provider who violates any provision of this section, any regulation promulgated pursuant to this section or any order issued to enforce the provisions of this section shall be subject to a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each day of any such violation. Such civil penalty shall be due and payable to the commission and shall be credited to the public utility account. The commission shall consider mitigating factors as raised by the telecommunications service provider in assessing the amount of the civil penalty. The commission shall allocate at least twenty-five percent (25%) of the revenue collected from such civil penalty for consumer education.
  7. Any telecommunications provider or person acting on behalf of a telecommunications provider who violates this section or regulations promulgated pursuant to this section shall pay damages to each subscriber affected by such conduct in an amount equal to all charges and fees for services for which the subscriber has not subscribed, including all amounts in excess of allowable charges for such services, and any cost incurred to reinstate the subscriber's original telecommunications service.
  8. This section shall not have the effect of amending or superseding any provisions of the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1.
  9. This section shall not have the effect of superseding any existing rules of the Tennessee public utility commission, or any order or proceeding to enforce such existing rules. Any such existing rules shall remain in effect until such time as the Tennessee public utility commission adopts new rules pursuant to this section.
  10. By September 1, 2000, all telecommunications service providers subject to the control and jurisdiction of the commission, except those owners or operators of public telephone service who pay annual inspection and supervision fees pursuant to § 65-4-301(b), or any telecommunications service provider that owns and operates equipment facilities in Tennessee with a value of more than five million dollars ($5,000,000), shall file with the commission a corporate surety bond or irrevocable letter of credit in the amount of twenty thousand dollars ($20,000) to secure the payment of any monetary sanction imposed in any enforcement proceeding, brought under this title or the Consumer Telemarketing Protection Act of 1990, compiled in title 47, chapter 18, part 15, by or on behalf of the commission.

Acts 1998, ch. 709, §§ 1-5; 2000, ch. 586, §§ 1-3; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority”, “the commission” for “the authority”, and “The commission” for “The authority”  throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-126. State policy on using energy more efficiently.

The general assembly declares that the policy of this state is that the Tennessee public utility commission will seek to implement, in appropriate proceedings for each electric and gas utility, with respect to which the commission has rate making authority, a general policy that ensures that utility financial incentives are aligned with helping their customers use energy more efficiently and that provides timely cost recovery and a timely earnings opportunity for utilities associated with cost-effective measurable and verifiable efficiency savings, in a way that sustains or enhances utility customers' incentives to use energy more efficiently.

Acts 2009, ch. 531, § 53; 2017, ch. 94, § 51.

Compiler's Notes. For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority”  and “the commission” for “the authority”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Part 2
Certificate of Public Convenience and Necessity

65-4-201. Certificate required — Bond or other security required for projects proposed by public utilities providing wastewater service.

  1. No public utility shall establish or begin the construction of, or operate any line, plant, or system, or route in or into a municipality or other territory already receiving a like service from another public utility, or establish service therein, without first having obtained from the commission, after written application and hearing, a certificate that the present or future public convenience and necessity require or will require such construction, establishment, and operation, and no person or corporation not at the time a public utility shall commence the construction of any plant, line, system, or route to be operated as a public utility, or the operation of which would constitute the same, or the owner or operator thereof, a public utility as defined by law, without having first obtained, in like manner, a similar certificate; provided, however, that this section shall not be construed to require any public utility to obtain a certificate for an extension in or about a municipality or territory where it shall theretofore have lawfully commenced operations, or for an extension into territory, whether within or without a municipality, contiguous to its route, plant, line, or system, and not theretofore receiving service of a like character from another public utility, or for substitute or additional facilities in or to territory already served by it.
  2. Except as exempted by state or federal law, no individual or entity shall offer or provide any individual or group of telecommunications services, or extend its territorial areas of operations without first obtaining from the Tennessee public utility commission a certificate of convenience and necessity for such service or territory; provided, however, that no telecommunications services provider offering and providing a telecommunications service under the authority of the commission on June 6, 1995, is required to obtain additional authority in order to continue to offer and provide such telecommunications services as it offers and provides as of June 6, 1995.
    1. After notice to the incumbent local exchange telephone company and other interested parties and following a hearing, the commission shall grant a certificate of convenience and necessity to a competing telecommunications service provider if after examining the evidence presented, the commission finds:
      1. The applicant has demonstrated that it will adhere to all applicable commission policies, rules and orders; and
      2. The applicant possesses sufficient managerial, financial and technical abilities to provide the applied for services.
    2. A commission order, including appropriate findings of fact and conclusions of law, denying or approving, with or without modification, an application for certification of a competing telecommunications service provider shall be entered no more than sixty (60) days from the filing of the application.
  3. Subsection (c) is not applicable to areas served by an incumbent local exchange telephone company with fewer than 100,000 total access lines in this state unless such company voluntarily enters into an interconnection agreement with a competing telecommunications service provider or unless such incumbent local exchange telephone company applies for a certificate to provide telecommunications services in an area outside its service area existing on June 6, 1995.
  4. The commission shall direct the posting of a bond or other security by a public utility providing wastewater service or for a particular project proposed by a public utility providing wastewater service. The purpose of the bond or other security shall be to ensure the proper operation and maintenance of the public utility or project. The commission shall establish by rule the form of such bond or other security, the circumstances under which a bond or other security may be required, and the manner and circumstances under which the bond or other security may be forfeited.
    1. The requirement under this subsection (e) to post a bond or other security by a public utility providing wastewater service shall also satisfy the requirement on such a public utility to provide a bond or other financial security to the department of environment and conservation as required by § 69-3-122.
    2. The commission shall establish by rule the amount of such bond or other security for various sizes and types of facilities.
    3. Notwithstanding any other law, posting a bond or other security under this subsection (e) or § 69-3-122, shall not be required until January 1, 2006, or until the commission's rules become effective, whichever occurs first. Such rules may be promulgated as emergency rules.
  5. The commission shall not issue a certificate of public convenience and necessity for a wind energy facility that includes any wind turbine with a total height in excess of three hundred fifty feet (350') as measured from the ground at its base to the maximum height of the blade tip located on a mountain ridge at an elevation above two thousand five hundred feet (2,500') mean sea level or five hundred feet (500') or more above mean sea level of the adjacent valley floor. This subsection (f) shall not apply to single wind turbines less than one hundred feet (100') in height as measured from the ground at its base to the maximum height of the blade tip and used to generate electricity that is consumed on the same site where the wind turbine is located.

Acts 1923, ch. 87, § 1; Shan. Supp., § 1843a1; Code 1932, § 5502; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-415; Acts 1995, ch. 305, § 20; 1995, ch. 408, § 7; 2005, ch. 62, § 1; 2009, ch. 566, § 12; 2017, ch. 94, § 51; 2018, ch. 825, § 16.

Compiler's Notes. Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

Amendments. The 2017 amendment substituted the occurences of “The commission” for “The authority” and “the commission” for “the authority” throughout; substituted “Tennessee public utility commission” for “Tennessee regulatory authority”  in (b); and substituted “the commission's rules” for “the authority's rules” in (e)(3).

The 2018 amendment added (f).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2018, ch. 825, § 20. April 24, 2018.

Cross-References. Certificate required for interstate electric power facilities, § 65-4-208.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, § 3.

Law Reviews.

Social Performance of Public Utilities: Effects of Monopoly and Competition, 17 Tenn. L. Rev. 308 (1942).

Attorney General Opinions. The federal communications commission has preempted T.C.A. § 65-4-201(d), but not T.C.A. § 65-4-201(c) pursuant to authority granted to it under the provisions of 47 U.S.C.S. § 253, enacted as part of the Telecommunications Act of 1996, OAG 01-036, 2001 Tenn. AG LEXIS 36 (3/19/01).

NOTES TO DECISIONS

1. Construction.

In construing this part, their interpretation may be aided by reference to the original act, Acts 1923, ch. 87. Holston River Electric Co. v. Hydro Electric Corp., 166 Tenn. 662, 64 S.W.2d 509, 1933 Tenn. LEXIS 134 (1933).

2. Power of the Former Commission.

The regulations and control prescribed by these sections were intended to apply to and affect a utility, already holding any required franchise with the commission's (now authority's) approval, which might be about to engage in some specific operation in competition with another similar company. Holston River Electric Co. v. Hydro Electric Corp., 166 Tenn. 662, 64 S.W.2d 509, 1933 Tenn. LEXIS 134 (1933).

This part does not deal with franchises, but purports to regulate the physical operation of public utilities. Holston River Electric Co. v. Hydro Electric Corp., 166 Tenn. 662, 64 S.W.2d 509, 1933 Tenn. LEXIS 134 (1933).

Certificate of convenience under this act is in addition to commission's (now authority's) approval of grant of franchise required by § 65-407 (now § 65-4-107). Holston River Electric Co. v. Hydro Electric Corp., 166 Tenn. 662, 64 S.W.2d 509, 1933 Tenn. LEXIS 134 (1933).

This part authorizes the commission (now authority) to exercise absolute power of regulation and control over public utilities. Patterson v. Chattanooga, 192 Tenn. 267, 241 S.W.2d 291, 1951 Tenn. LEXIS 401 (1951).

3. Denial of Certificate.

Denial by public service commission (now authority) of request for certificate of convenience and necessity in certain disputed area was not improper even though area was not receiving telephone service where other telephone company had included area in tariffs and area maps filed while applicant company had not and no residents of disputed area had filed complaints with commission. Peoples Tel. Co. v. Tennessee Public Service Com., 216 Tenn. 608, 393 S.W.2d 285, 1965 Tenn. LEXIS 605 (1965).

4. Territory.

The word “territory,” as used in this section, includes all the area within a territory a public utility has offered and become liable to serve whether the public utility has physical facilities in every part thereof or not. Peoples Tel. Co. v. Tennessee Public Service Com., 216 Tenn. 608, 393 S.W.2d 285, 1965 Tenn. LEXIS 605 (1965).

5. Issuance of Certificate.

Chancery court properly dismissed a public utility's complaint for, inter alia, a declaratory judgment for lack of subject matter jurisdiction because, while the utility had the right to provide water service, the gravamen of its complaint was to maintain its exclusive franchise by prohibiting a developer and a competitor from providing water service where the utility's averments were ostensibly an appeal of the PUC's refusal to issue a declaratory order—that the competitor was a “public utility” and was illegally operating without a certificate of public convenience—and the PUC lacked authority to grant certificates of public convenience or to eject a competitor from an exclusive service area. Milcrofton Util. Dist. of Williamson Cty. v. Non Potable Well Water, Inc., — S.W.3d —, 2019 Tenn. App. LEXIS 227 (Tenn. Ct. App. May 10, 2019).

Collateral References.

Validity of contract between public utilities other than carriers, dividing territory and customers. 70 A.L.R.2d 1326.

Preemption of state or local law by Telecommunications Act of 1996 47 U.S.C. § 253. 195 A.L.R. Fed. 275.

65-4-202. Complaint of interference — Limited certificate.

If any public utility, in establishing, constructing, reconstructing, or extending its route, line, plant or system, shall interfere or be about to interfere with the existing route, line, plant, or system of any other public utility, the commission, on complaint of the public utility claiming to be injuriously affected, may, after hearing, make such order and prescribe such terms and conditions in harmony with this part as are just and reasonable. The commission shall have power, after a hearing involving the financial ability and good faith of the applicant, the necessity for additional service in the municipality or territory, and such other matters as it deems relevant, to issue a certificate of public necessity and convenience, or to refuse to issue the same or to issue it for the establishment or construction of a portion only of the contemplated plant, route, line, or system or extension thereof, or for the partial exercise only of such right or privilege, and may attach to the exercise of the rights granted by the certificate such terms and conditions as to time or otherwise as in its judgment the public convenience, necessity, and protection may require, and may forfeit such certificate after issuance, for noncompliance with its terms, or provide therein for an ipso facto forfeiture of the same for failure to exercise the rights granted within the time fixed by the commission; provided, that nothing in this part shall be construed as requiring such certificate for a municipally owned plant, project, or development.

Acts 1923, ch. 87, § 1; Shan. Supp., § 1843a2; Code 1932, § 5503; T.C.A. (orig. ed.), § 65-416; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “The commission” for “The authority” and “the commission” for “the authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Collateral References.

Competition by grantor of nonexclusive franchise as violation of constitutional rights of franchise holder. 114 A.L.R. 192.

Right of public utility not having an exclusive franchise to protection against, or damages for, interference with its operations, property, or plant by a competitor. 119 A.L.R. 432.

65-4-203. Basis for granting certificate — Notice of hearing.

  1. The commission shall not grant a certificate for a proposed route, plant, line, or system, or extension thereof, which will be in competition with any other route, plant, line, or system, unless it shall first determine that the facilities of the existing route, plant, line, or system are inadequate to meet the reasonable needs of the public, or the public utility operating the same refuses or neglects or is unable to or has refused or neglected, after reasonable opportunity after notice, to make such additions and extensions as may reasonably be required under this part.
  2. In all proceedings under this section, the commission shall give at least ten (10) days' notice to the authorities of, and the public utilities operating in, the municipality or territory affected.
  3. This section shall not apply to telecommunications service providers.

Acts 1923, ch. 87, § 2; Shan. Supp., § 1843a3; Code 1932, § 5504; T.C.A. (orig. ed.), § 65-417; Acts 1995, ch. 305, § 20; 1995, ch. 408, § 5; 2017, ch. 94, § 51.

Compiler's Notes. This section is suspended by necessary implication by § 65-15-107 insofar as it relates to issuance of certificates to motor carriers. See Tennessee-Carolina Transp., Inc. v. Pentecost, 211 Tenn. 72, 362 S.W.2d 461 (1962).

Amendments. The 2017 amendment substituted “The commission” for “The authority” at the beginning of (a); and substituted “the commission” for “the authority” in (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 58.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777 (1967).

Attorney General Opinions. Authority as to certification of competing local telecommunications providers, OAG 94-144, 1994 Tenn. AG LEXIS 170(12/16/94).

NOTES TO DECISIONS

1. Partial Repeal.

This section is suspended by necessary implication by § 65-15-107 insofar as it relates to issuance of certificates to motor carriers. Tennessee-Carolina Transp., Inc. v. Pentecost, 211 Tenn. 72, 362 S.W.2d 461, 1962 Tenn. LEXIS 341 (1962).

2. Monopoly.

Existing utility does not have monopoly since this section authorizes the commission (now authority) to allow competing service under the criteria specified herein. Peoples Tel. Co. v. Tennessee Public Service Com., 216 Tenn. 608, 393 S.W.2d 285, 1965 Tenn. LEXIS 605 (1965).

65-4-204. Public hearing on certificate — Plans and information required of applicant.

The commission may, upon its own initiative, or shall upon written application of any party in interest, order a public hearing with due notice to all interested parties, at which hearing the person proposing to create the development of water power or other plant or equipment, or extension of the same, shall be required to file with the commission, under oath, engineering plans and other information fully descriptive of the proposed development or such thereof as in the opinion of the commission can reasonably be furnished by such applicant, together with such other reasonable information as may be called for at the hearing or any adjournment of the same; and the commission shall have full power to issue or refuse the certificate of public necessity and convenience, or to qualify or withdraw the same as provided in § 65-4-203.

Acts 1923, ch. 87, § 3; Shan. Supp., § 1843a4; Code 1932, § 5505; T.C.A. (orig. ed.), § 65-418; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “The commission” for “The authority” at the beginning; and substituted “the commission” for “the authority” throughout.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-205. Evidence.

All evidence taken by the commission in any such hearing or hearings shall be taken under oath and may be treated as evidence in any court.

Acts 1923, ch. 87, § 5; Shan. Supp., § 1843a6; Code 1932, § 5507; T.C.A. (orig. ed.), § 65-419; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-206. [Repealed.]

Compiler's Notes. Former § 65-4-206 (Acts 1923, ch. 87, § 4; Shan. Supp., § 1843a5; Code 1932, § 5506; modified; T.C.A. (orig. ed.), § 65-420), concerning the fee for issuing the certificate, was repealed by Acts 1986, ch. 862, § 2.

65-4-207. Law inapplicable at local option.

  1. This part does not apply where any municipality or county by resolution or ordinance declares that a public necessity requires a competing company in that municipality or county.
  2. This section shall not apply to telecommunications service providers; provided, that this section shall continue to apply with respect to any ordinance adopted, and any franchise granted pursuant to such an ordinance, prior to June 6, 1995.

Acts 1923, ch. 87, § 6; Shan. Supp., § 1843a8; Code 1932, § 5508; T.C.A. (orig. ed.), § 65-421; Acts 1995, ch. 408, § 6.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, § 3.

Law Reviews.

Social Performance of Public Utilities: Effects of Monopoly and Competition, 17 Tenn. L. Rev. 308 (1942).

NOTES TO DECISIONS

1. Construction.

The phrase “the provisions of this statute,” as they appeared in this section in the 1932 Code was held to refer to this part. Holston River Electric Co. v. Hydro Electric Corp., 166 Tenn. 662, 64 S.W.2d 509, 1933 Tenn. LEXIS 134 (1933).

2. Municipal Declaration of Necessity.

Under this section the provisions of this part requiring certificate of convenience from the utilities commission, do not apply when the necessity for a competing utility is declared by the municipality. Holston River Electric Co. v. Hydro Electric Corp., 166 Tenn. 662, 64 S.W.2d 509, 1933 Tenn. LEXIS 134 (1933).

3. Approval of Franchise by the Former Commission.

A municipal franchise granted in 1932 to an electric corporation by ordinance, declaring that public necessity required competition, is invalid if not approved by the commission (now authority). Holston River Electric Co. v. Hydro Electric Corp., 166 Tenn. 662, 64 S.W.2d 509, 1933 Tenn. LEXIS 134 (1933).

65-4-208. Interstate transmission of electric power.

  1. Notwithstanding any other law, no person, firm or corporation not engaged on March 22, 1955, in the business of generating, transmitting, distributing, or furnishing electric power shall extend or construct transmission or distribution lines or other works into or within the state, directly or indirectly enter the state, for the purpose of delivering within the state electric power generated at a point or points outside the state, unless such person, firm or corporation shall have first submitted its plans for such extension, construction or entry to the commission and shall have obtained from the commission a certificate of public convenience and necessity covering the same. The commission shall deny such certificate if, after a hearing, the commission cannot affirmatively establish that the granting of such certificate would serve the public interest.
  2. This section shall not apply to the federal government or any federal agency, to the state of Tennessee or any agency or political subdivision of the state, or to any cooperative association organized under the former Electric Cooperative Act or the former Electric Membership Corporation Act, but shall be fully applicable to any private corporation organized under the laws of this or any other state and to any public corporation of any other state, irrespective of the nature, identity or governmental or other public status of the purchaser, consumer, or other party to whom electric power is to be delivered within the state.
  3. The provisions of this section shall be cumulative and the requirements contained in this section shall be in addition to, and not in substitution for, the requirements contained in any other law.

Acts 1955, ch. 325, §§ 1-3; T.C.A. (orig. ed.), §§ 65-438 — 65-440; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Compiler's Notes. The Electric Cooperative Act, referred to in this section, was repealed by Acts 1988, ch. 689, § 2. For the Rural Electric and Community Services Cooperative Act, see title 65, ch. 25, part 2.

The Electric Membership Corporation Act, referred to in this section, was repealed by Acts 1988, ch. 689, § 5.

Amendments. The 2017 amendment substituted “the commission” for “the authority” and “The commission” for “The authority” throughout (a).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Rural electric and community services cooperatives, title 65, ch. 25, part 2.

Part 3
Inspection, Control, and Supervision Fee

65-4-301. Fees required.

    1. Every public utility doing business in this state and subject to the control and jurisdiction of the commission to which this chapter applies, shall pay to the state on or before April 1 of each year, a fee for the inspection, control and supervision of the business, service and rates of such public utility.
    2. Fees collected by the commission pursuant to this part shall be expended by the commission for the inspection, control and supervision of the business service and rates of such public utilities as established in subdivision (a)(1). In addition, the Tennessee public utility commission may grant, on a one-time basis, an amount not to exceed four hundred thousand dollars ($400,000) from the public utilities account, as defined in § 65-4-307, to the 2-1-1 collaborative for the purpose of defraying start-up costs associated with the establishment of 2-1-1 telephone service to cover all parts of the state. Such grant may be made only after public notice is provided by the Tennessee public utility commission, specifically giving all public utilities, which are currently doing business in this state and subject to the control and jurisdiction of the commission, the opportunity to raise objection to such grant. The commission shall consider any objection timely filed in response to the commission notice prior to making such grant.
  1. Every owner or operator of a public pay telephone service who is not a public utility paying a fee in accordance with subsection (a), and who is authorized to provide such service pursuant to commission regulation, shall pay an annual inspection and supervision fee of ten dollars ($10.00) for each service location. Such fee shall be paid on or before July 1 of each year.

Acts 1921, ch. 107, § 2; Shan. Supp., § 3059a99; Code 1932, § 5459; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-425; Acts 1990, ch. 676, § 1; 1995, ch. 305, § 20; 2004, ch. 762, § 3; 2017, ch. 94, § 51.

Compiler's Notes. Acts 2004, ch. 762, § 1 provided that the title of the act is and may be cited as the “Calling for 2-1-1 Act”.

Amendments. The 2017 amendment substituted “the commission” for “the authority” and “The commission” for “The authority” throughout; substituted “Tennessee public utility commission” for “Tennessee regulatory authority” twice in (a)(2); and substituted “commission regulation” for “authority regulation” in the first sentence of (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Gas Companies, § 6; 21 Tenn. Juris., Public Service Commissions, § 3.

NOTES TO DECISIONS

1. Scope of Fee.

Imposition of inspection fees under this section is not limited to inspection only, since fees cover “inspection, control, and supervision of the business, service, and rates of the public utility against which the charge is made.” Memphis Natural Gas Co. v. McCanless, 183 Tenn. 635, 194 S.W.2d 476, 1946 Tenn. LEXIS 247 (1946), cert. denied, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946), dismissed, Tait v. Ragen, 67 S. Ct. 99, 329 U.S. 755, 91 L. Ed. 651 (1946), cert. denied, Memphis Natural Gas Co. v. McCanless, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946).

2. Payment of Fee.

Where natural gas company operated jointly with power and light company the fees for “inspection, control and supervision” of the operation should be paid by both utilities for the purposes of the “Public Utility Account.” Memphis Natural Gas Co. v. McCanless, 183 Tenn. 635, 194 S.W.2d 476, 1946 Tenn. LEXIS 247 (1946), cert. denied, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946), dismissed, Tait v. Ragen, 67 S. Ct. 99, 329 U.S. 755, 91 L. Ed. 651 (1946), cert. denied, Memphis Natural Gas Co. v. McCanless, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946).

3. Amount of Fee.

Public utility had the burden of proof where it charged inspection was a fiction and that fees charged were excessive. Memphis Natural Gas Co. v. McCanless, 183 Tenn. 635, 194 S.W.2d 476, 1946 Tenn. LEXIS 247 (1946), cert. denied, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946), dismissed, Tait v. Ragen, 67 S. Ct. 99, 329 U.S. 755, 91 L. Ed. 651 (1946), cert. denied, Memphis Natural Gas Co. v. McCanless, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946).

65-4-302. Fee in addition to other taxes and fees.

The fee provided for in this part shall be paid by the public utility in addition to any and all property, franchise, license, and other taxes, fees, and charges fixed, assessed, or charged by law against such utility.

Acts 1921, ch. 107, § 2; Shan. Supp., § 3059a100; Code 1932, § 5460; T.C.A. (orig. ed.), § 65-426.

65-4-303. Fee measured by gross receipts from intrastate operations — Rates.

  1. The amount of the fee provided for in this section shall be measured by the amount of the gross receipts from intrastate operations of each public utility in excess of five thousand dollars ($5,000).
    1. Except as provided in subdivision (b)(2), “gross receipts from intrastate operations”:
      1. Means total revenues, before any deductions, which are recognized by the commission as utility revenue for the purpose of setting intrastate rates under chapter 5 of this title; and
      2. Does not include any revenues from directory operations; provided, that the exclusion of these revenues from directory operations shall not affect the power of the commission to include or exclude these revenues in setting intrastate rates.
    2. For companies that elect market regulation pursuant to § 65-5-109(m), “gross receipts from intrastate operations” means the total revenue derived from the provision of intrastate services to non-affiliated telecommunications carriers, including specifically revenue from interconnection, collocation, billing and collection, inter-carrier compensation, services sold for resale and carrier access; provided, that revenue derived from the provision of retail services and products to consumers that are not telecommunications carriers is excluded.
    1. The fee fixed and assessed against and to be paid by each public utility shall be due and payable on or before April 1, 2014, and each April 1 thereafter, and shall be based on the previous calendar year's gross receipts from intrastate operations. The fee shall be four dollars and twenty-five cents ($4.25) per one thousand dollars ($1,000) of such gross receipts over five thousand dollars ($5,000), except as set forth in subdivision (c)(2) for companies that provide telecommunications services.
      1. Notwithstanding the calculations in subdivision (c)(1), the minimum inspection fee for companies that elect market regulation pursuant to § 65-5-109(m) shall be forty-nine percent (49%) of the inspection fee that was due by such company on April 1, 2012. Such companies shall file with their fee payments a calculation of both the fee as calculated under subdivision (c)(1) and the alternative minimum calculation established in this subdivision (c)(2)(A).
      2. Notwithstanding the calculation in subdivision (c)(1), the maximum inspection fee for a company providing telecommunications services that does not elect to enter market regulation shall be the inspection fee that was due by such company on April 1, 2012.
      3. In no event, however, shall the minimum inspection fee for any telecommunications service company be less than one hundred dollars ($100).
  2. The fee shall be due and payable on or before April 1, 2014, and each April 1 thereafter.
  3. The fee provided for in this section may be recovered by a public utility operating under rate of return regulation through either a rate case proceeding pursuant to § 65-5-103 or a separate recovery mechanism to be determined by the commission. Nothing in this section shall alter the manner in which public utilities that operate under price regulation or market regulation, pursuant to § 65-5-109, may set rates. Nothing in this section shall alter the limitations on the jurisdiction of the commission over market-regulated companies in § 65-5-109. A public utility may recoup its inspection fees by including a line item on its subscribers' bills.

Acts 1921, ch. 107, § 2; Shan. Supp., § 3059a101; Code 1932, § 5461; Acts 1935, ch. 139, § 1; C. Supp. 1950, § 5461; T.C.A. (orig. ed.), § 65-427; Acts 1986, ch. 862, § 5; 1987, ch. 53, § 1; 1993, ch. 461, § 1; 1995, ch. 305, § 20; 2009, ch. 531, § 54; 2013, ch. 245, § 4; 2017, ch. 94, § 51.

Compiler's Notes. For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

Amendments. The 2017 amendment substituted “the commission” for “the authority” in (b)(1)(A), in (b)(1)(B) and twice in (e).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

NOTES TO DECISIONS

1. Fee Not a Gross Receipts Tax.

Contribution to payment of administrative expenses on basis of gross receipts of utility did not make inspection fees a gross receipt tax, since gross receipts were used only as a yardstick to determine equitable share of utility. Memphis Natural Gas Co. v. McCanless, 183 Tenn. 635, 194 S.W.2d 476, 1946 Tenn. LEXIS 247 (1946), cert. denied, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946), dismissed, Tait v. Ragen, 67 S. Ct. 99, 329 U.S. 755, 91 L. Ed. 651 (1946), cert. denied, Memphis Natural Gas Co. v. McCanless, 329 U.S. 670, 67 S. Ct. 99, 91 L. Ed. 591, 1946 U.S. LEXIS 1913 (1946).

Collateral References.

Constitutionality, construction, and application of state and local public-utility-gross-receipts-tax statutes-modern cases. 58 A.L.R.5th 187.

65-4-304. Minimum fees.

In no case shall the fee to be paid be less than one hundred dollars ($100), which will be the minimum inspection, control and supervision fee to be paid by any public utility subject to such fee.

Acts 1921, ch. 107, § 1; Shan. Supp., § 3059a102; Code 1932, § 5462; Acts 1935, ch. 139, § 2; C. Supp. 1950, § 5462; T.C.A. (orig. ed.), § 65-428; Acts 1993, ch. 461, § 2; 1995, ch. 305, § 20.

65-4-305. Information required of utility.

Annually, every such public utility doing business in this state shall file with the commission a statement under oath, in such form and substance as may be prescribed by the commission, setting forth accurately the amount of its gross receipts from all sources for the preceding calendar year. Any such public utility failing to file such statement as required, or failing to give such other information as may be reasonably required of such public utility, commits a Class C misdemeanor for each day of such failure to comply.

Acts 1921, ch. 107, § 3; Shan. Supp., § 3059a103; Code 1932, § 5463; T.C.A. (orig. ed.), § 65-429; Acts 1989, ch. 591, § 113; 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority” twice in the first sentence.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

65-4-306. Time for payment of fees.

The inspection, control, and supervision fees provided for in this part shall become due and payable on April 1 of each year.

Acts 1921, ch. 107, § 4; Shan. Supp., § 3059a104; Code 1932, § 5464; T.C.A. (orig. ed.), § 65-430.

65-4-307. Collection and disposition of fees.

The inspection, control and supervision fees provided for in this part shall be collected by the commission. Such fees, when collected, shall be deposited in the state treasury but shall be kept in a separate account, to be known as the “public utilities account” and the funds so raised shall thus be segregated.

Acts 1921, ch. 107, § 5; Shan. Supp., § 3059a105; Code 1932, § 5465; Acts 1947, ch. 17, § 2; C. Supp. 1950, § 5465; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-431; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority” at the end of the first sentence.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, § 3.

65-4-308. Default.

In case of default in the payment of any fee, or part thereof, when the same shall become due, as provided in § 65-4-306, any such public utility in default shall be liable for a penalty of ten percent (10%) per month or fraction thereof, on the amount of the fee, which may be recovered by suit of the state for every month it remains in default, and any such penalty, when collected, shall be deposited into the state treasury as a part of the utilities account; provided, that out of any such penalty, the commission may employ and pay counsel, who shall have power to institute suit in any court of competent jurisdiction for the recovery of such penalty, but in no event shall anything more than the penalty be allowed to such counsel for making such collections.

Acts 1921, ch. 107, § 5; Shan. Supp., § 3059a106; Code 1932, § 5466; modified; Acts 1973, ch. 250, § 1; T.C.A. (orig. ed.), § 65-432; Acts 1995, ch. 305, § 20; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “the commission” for “the authority.”

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-309. Lien for fees and penalties.

A lien is declared, and shall exist, upon all the property of each public utility in default, for the payment of the fee prescribed, together with all penalties accruing under this part, which liens shall be superior to all other liens, except those for federal, state, county and municipal taxes.

Acts 1921, ch. 107, § 5; Shan. Supp., § 3059a107; Code 1932, § 5467; T.C.A. (orig. ed.), § 65-433.

Part 4
Telephone Solicitation and Number Portability

65-4-401. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Caller identification service” means telephone service which notifies telephone subscribers of the telephone number of incoming telephone calls;
  2. “Commission” means the Tennessee public utility commission;
  3. “Local exchange company” includes telecommunications service providers as defined in § 65-4-101, competing telecommunications service providers as such term is defined in § 65-4-101, telephone cooperatives, and cellular or other wireless telecommunications providers;
  4. “Person” means a natural person, individual, partnership, corporation, trust, estate, incorporated or unincorporated association and any other legal or commercial entity however organized and wherever located that telemarkets to citizens located within the state of Tennessee;
  5. “Residential subscriber” means a person who has subscribed to residential telephone service from a local exchange company or the other persons living, residing or visiting with such person; and
    1. “Telephone solicitation” means any voice communication over a telephone originating from Tennessee or elsewhere that:
      1. Promotes or encourages, directly or indirectly, the purchase of, rental of, or investment in property, goods, or services;
      2. Refers a residential subscriber to another person for the purpose of promoting or encouraging the purchase of, rental of, or investment in property, goods, or services; or
      3. Requests a charitable contribution except as provided for in subdivision (6)(B)(ii);
    2. “Telephone solicitation” does not include voice communications to any residential subscriber:
      1. With that subscriber's prior express permission;
      2. If the communication is made by a bona fide member, volunteer or direct employee of a not-for-profit organization exempt from paying taxes under § 501(c) of the Internal Revenue Code (26 U.S.C. §  501(c)), provided the voice communication is made to request a charitable contribution to be used solely for such not-for-profit organization's exempt purpose;
      3. Who is an existing customer. For the purposes of this part, an “existing customer” includes a residential subscriber with whom the person or entity making a telephone solicitation has had a prior relationship within the prior twelve (12) months; or
      4. If the communication is made on behalf of a business and all of the following conditions are met:
  1. A direct employee of the business makes the voice communication;
  2. The communication is not made as part of a telecommunications marketing plan;
  3. The business has a reasonable belief that the specific person who is receiving the voice communication is considering purchasing the service or product sold or leased by the business and the call is specifically directed to such person;
  4. The business does not sell or engage in telemarketing services; and
  5. The business does not make more than a total of three (3) such voice communications in any one (1) calendar week.

Acts 1999, ch. 478, § 1; 2001, ch. 422, § 1; 2017, ch. 94, § 51.

Amendments. The 2017 amendment replaced the former definition of “authority” which read: “‘Authority’ means the Tennessee regulatory authority;” with the present definition of “commission”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-402. Identity of caller — Authorized times for solicitation.

Any person or entity who makes a telephone solicitation to any residential subscriber in this state shall, at the beginning of such call, state clearly the identity of the person initiating the call and entity or organization such person represents. Without the permission of the residential subscriber, no person or entity who makes a telephone solicitation shall call such subscriber at any time other than between the hours of eight o'clock a.m. (8:00 a.m.) to nine o'clock p.m. (9:00 p.m.), prevailing time.

Acts 1999, ch. 478, § 2.

65-4-403. Circumvention of caller identification service prohibited.

No person or entity who makes a telephone solicitation to the telephone of a residential subscriber in this state shall knowingly utilize any method to block or otherwise circumvent such subscriber's use of a caller identification service.

Acts 1999, ch. 478, § 3.

65-4-404. Calls to persons objecting to solicitation.

No person or entity shall knowingly make or cause to be made any telephone solicitation to any residential subscriber in this state who has given notice to the commission, in accordance with regulations promulgated pursuant to this part, of such subscriber's objection to receiving telephone solicitations.

Acts 1999, ch. 478, § 4; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted  “the commission” for “the authority” near the middle of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-405. Database of persons objecting to solicitation — Regulations — Enforcement actions.

  1. The commission shall establish and provide for the operation of a database to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations. It shall be the duty of the commission to have such database in operation no later than May 1, 2000. Such database may be operated by the commission or by another entity under contract with the commission.
  2. No later than January 1, 2000, the commission shall promulgate regulations which:
    1. Require each local exchange company to semi-annually inform its residential subscribers of the opportunity to provide notification to the commission or its contractor that such subscriber objects to receiving telephone solicitations;
    2. Specify the methods by which each residential subscriber may give notice to the commission or its contractor of such subscriber's objection to receiving such solicitations or revocation of such notice;
    3. Specify the length of time for which a notice of objection shall be effective and the effect of a change of telephone number on such notice;
    4. Specify the methods by which such objections and revocations shall be collected and added to the database;
    5. Specify the methods by which any person or entity desiring to make telephone solicitations will obtain access to the database as required to avoid calling the telephone numbers of residential subscribers included in the database; and
    6. Specify such other matters that the commission deems necessary to implement this part.
  3. If, pursuant to 47 U.S.C. § 227(c)(3), the federal communications commission establishes a single national database of telephone numbers of subscribers who object to receiving telephone solicitations, the commission shall include the part of such single national database that relates to Tennessee in the database established under this part.
    1. A person or entity desiring to make telephone solicitations to any residential subscriber shall pay to the commission by certified check or money order, on or before March 15, 2000, an annual registration fee of five hundred dollars ($500) to defray regulatory and enforcement expenses. Such annual registration fee shall allow access to the Do Not Call Register compiled from the database established under this part; such registration and access shall be limited to the time period April 1, 2000 until June 30, 2001, or any part thereof. Thereafter, the registration deadline and annual time period shall be determined by rule duly promulgated by the commission.
    2. Unlimited electronic copies of the Do Not Call Register shall be available to persons or entities upon their payment of the annual registration fee. A fee shall be established by rule of the commission for paper copies of the Do Not Call Register.
    3. Fifteen (15) days after the registration deadline, the non-payment of any required fee is a violation of this part. The telephone solicitation of any residential subscriber listed in the Do Not Call Register compiled from the database established under this part, by any person or entity who is not duly registered and who is not otherwise exempted by law, is a violation of this part.
    4. As used in this subsection (d), “entity” includes any parent, subsidiary, or affiliate of a person.
  4. Information contained in the database established under this part shall not be subject to public inspection or disclosure under title 10, chapter 7. Such information shall be used only for the purpose of compliance with this part or in a proceeding or action under this part.
  5. The commission is authorized to initiate proceedings relative to a violation of this part or any rules and regulations promulgated pursuant to this part. Such proceedings include without limitation proceedings to issue a cease and desist order, to issue an order imposing a civil penalty up to a maximum of two thousand dollars ($2,000) for each knowing violation, and to seek additional relief in any court of competent jurisdiction. Each violation shall be calculated in a liberal manner to deter violations and to protect consumers. Each violation may include each telephone solicitation made to a residential subscriber that was on the list that the violator telephoned. The commission is authorized to issue investigative demands, issue subpoenas, administer oaths, and conduct hearings in the course of investigating a violation of this part, in accordance with this title. All civil penalties assessed pursuant to this part shall be deposited in the public utilities account in the state treasury.
  6. No later than January 1, 2000, the commission shall hold a hearing to receive testimony from entities subject to this part who employ independent contractors to make telephone solicitations to determine if the commission should authorize such independent contractors to access the database at a reduced fee. The commission is authorized to allow such access and develop a fee schedule for access to the database by independent contractors and the entity which employs such contractors.
  7. As supplementary to the authority granted in this part, the attorney general and reporter, at the request of the commission, may bring an action in any court of competent jurisdiction in the name of the state against any person or entity relative to a violation of this part or any rules and regulations promulgated pursuant to this part. The courts are authorized to issue orders and injunctions to restrain and prevent violations of this part, and such orders and injunctions shall be issued without bond. In any action commenced by the state, the courts are authorized to order reasonable attorneys' fees and investigative costs be paid by the violator to the state. An action brought by the attorney general and reporter may also include other causes of action such as but not limited to a claim under the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1.
  8. Upon request of any person, the commission shall initiate a rulemaking proceeding establishing the rules pursuant to which a registrant may share the Do Not Call Register with persons affiliated with the registrant as an independent contractor or member.
  9. On and after January 1, 2012, for purposes of this section, “residential subscriber” also means a state government telephone subscriber.

Acts 1999, ch. 478, § 5; 2000, ch. 729, §§ 1-4; 2011, ch. 177, § 2; 2017, ch. 94, § 51.

Compiler's Note. For the National Do Not Call Registry, see https://www.donotcall.gov.  For Tennessee implementation of the Do Not Call Program, see http://www.tn.gov/tra/donotcall.

Amendments. The 2017 amendment substituted “The commission” for “The authority” and “the commission” for “the authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Attorney General Opinions. Providing telephone numbers in the Tennessee Do-Not-Call Register to the Federal Trade Commission, OAG 03-082, 2003 Tenn. AG LEXIS 99 (6/25/03).

65-4-406. Remedies not exclusive.

The remedies, duties, prohibitions, and penalties of this part are not exclusive and are in addition to the Consumer Telemarketing Protection Act of 1990, compiled in title 47, chapter 18, part 15, and all other causes of action, remedies, and penalties provided by law.

Acts 1999, ch. 478, § 6.

65-4-407. Liability of caller identification service providers.

No provider of telephone caller identification service shall be held liable for violations of this part committed by other persons or entities.

Acts 1999, ch. 478, § 7.

65-4-408. Defenses.

It shall be a defense in any action or proceeding brought under this part that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of this part.

Acts 1999, ch. 478, § 8.

65-4-409. Portability of telephone number.

The local exchange company shall provide notice to the customer at the time the customer signs up for new service of the availability of number portability of the customer's telephone number.

Acts 2006, ch. 769, § 1.

65-4-410. Do Not Call Register.

  1. Residential telephone subscribers may enroll on the Tennessee Do Not Call Register in the manner prescribed by the commission. Enrollment shall take effect thirty (30) days following the first day of the succeeding month of enrollment by the subscriber.
  2. State government telephone subscribers may enroll on the Tennessee Do Not Call Register in a manner prescribed by the commission; provided, that only the administrative head, or such person's designee, for each state department, agency, board, commission and other entity of the state, including the legislative branch and the judicial branch, may designate telephone numbers for such department, agency, board, commission or other entity of the state to be enrolled on the register. Enrollment shall take effect thirty (30) days following the first succeeding month of enrollment.

Acts 2006, ch. 769, § 2; 2011, ch. 177, § 1; 2017, ch. 94, § 51.

Compiler's Note. For the National Do Not Call Registry, see https://www.donotcall.gov.  For Tennessee implementation of the Do Not Call Program, see http://www.tn.gov/tra/donotcall.

Amendments. The 2017 amendment substituted “the commission” for “the authority” at the end of the first sentence in (a) and preceding the proviso in (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Part 5
Unsolicited Facsimiles

65-4-501. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Commission” means the Tennessee public utility commission;
  2. “Fax” or “facsimile” means:
    1. Every process in which electronic signals are transmitted by telephone lines for conversion into written text or other graphic images; but
    2. “Fax” or “facsimile” does not include:
      1. Electronic mail or “e-mail” as regulated pursuant to title 47, chapter 18, part 25; or
      2. Any transmission of electronic signals by a local exchange company to the extent that the local exchange company merely carries that transmission over its network;
  3. “Local exchange company” includes telecommunications service providers as defined in § 65-4-101, competing telecommunications service providers as such term is defined in § 65-4-101, telephone cooperatives, and cellular or other wireless telecommunications providers, or interactive computer service provider as defined by 47 U.S.C. § 230(f);
  4. “Person” means a natural person, individual, partnership, trust, estate, incorporated or unincorporated association, any corporation, parent, subsidiary or affiliate thereof, or any other legal or commercial entity however organized and wherever located;
    1. “Affiliate” of a specific person means a person that directly or indirectly through one or more intermediaries, controls, or is controlled by, is under common control with, the person specified;
    2. “Parent” means a company owning more than fifty percent (50%) of the voting shares, or otherwise a controlling interest, of another company; and
    3. “Subsidiary” means a corporation with more than fifty percent (50%) of its outstanding voting shares being owned by its parent or the parent's other subsidiaries; and
  5. “Unsolicited facsimile advertisement” means any material advertising the commercial availability or quality of any property, goods, or services, that is transmitted by fax to any person located within the state of Tennessee without such person's prior express invitation or permission, and is transmitted from Tennessee or elsewhere for the purpose of offering the extension of credit or encouraging the purchase or rental of, or investment in, property, goods, or services.

Acts 2003, ch. 15, § 1; 2017, ch. 94, § 51.

Compiler's Notes. 47 U.S.C. § 230, referred to in this section, pertains to protection for private blocking and screening of offensive material.

Amendments. The 2017 amendment substituted “Commission” for “Authority” and “Tennessee public utility commission” for “Tennessee regulatory authority” in (1).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-502. Unsolicited facsimile advertisements prohibited — Information required on transmissions.

  1. No person shall transmit or cause another person to transmit an unsolicited facsimile advertisement; provided, that a not-for-profit membership organization exempt from paying taxes under § 501(c) of the Internal Revenue Code (26 U.S.C. §  501(c)) is exempt from this subsection (a), if the facsimile is made by a bona fide member, volunteer, or direct employee of the organization to its current membership.
  2. Any transmission by facsimile machine shall include in a margin at the top or bottom of each transmitted page or on the first page of the transmission the date and time of the transmission; an identification of the business, other entity, or individual sending the message; and the telephone number of the sending machine or of such business, other entity or individual.

Acts 2003, ch. 15, § 1; 2004, ch. 502, § 1; 2006, ch. 510, § 1.

Law Reviews.

Don't Call, Email, Fax: The Consumer Advertising Labyrinth (Kelly L. Frey Sr., Nicole James and Kelly L. Frey II), 43 Tenn. B.J. 22 (2007).

65-4-503. Implementation.

The commission is authorized to promulgate any rules and regulations necessary to implement and effectuate this part.

Acts 2003, ch. 15, § 1; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-504. Commission — Penalties — Investigations — Notice and hearing.

  1. The commission is authorized to initiate proceedings relative to a violation of this part or any rules and regulations promulgated pursuant to this part. Such proceedings include, without limitation, proceedings to: issue a cease and desist order; issue an order imposing a civil penalty up to a maximum of two thousand dollars ($2,000) for each violation; and to seek additional relief in any court of competent jurisdiction. Violations shall be calculated in a liberal manner to deter violators and to protect consumers. Each page of each unsolicited facsimile advertisement may constitute a separate violation.
  2. In the course of investigating an alleged violation of this part, the commission is authorized to issue investigative demands, issue subpoenas, administer oaths, and conduct hearings in accordance with this title. After proper notice, any such hearing shall be conducted in conformance with commission rules and the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. All civil penalties assessed pursuant to this part shall be deposited in the public utilities account in the state treasury.

Acts 2003, ch. 15, § 1; 2017, ch. 94, § 51.

Amendments. The 2017 amendment substituted “commission” for “authority” at the beginning of (a) and twice in (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-4-505. Remedies — Construction.

  1. This part shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.
  2. This part shall not be construed to restrict or apply to communications to and from citizens and their elected representatives.

Acts 2003, ch. 15, § 1.

65-4-506. Violations.

  1. A violation of this part also constitutes a violation of the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1.
  2. For the purpose of application of the Tennessee Consumer Protection Act, any violation of this part shall be construed to constitute an unfair or deceptive act or practice affecting trade or commerce and subject to the penalties and remedies as provided in that act, in addition to the penalties and remedies set forth in this part as well as that of 47 U.S.C. § 227, or any other cause of action, civil remedy or penalty provided by law.

Acts 2003, ch. 15, § 1.

Compiler's Notes. 47 U.S.C. § 227, referred to in this section, pertains to restrictions on use of telephone equipment.

Chapter 5
Regulation of Rates

Part 1
Public Utilities

65-5-101. Power to fix rates of public utilities.

  1. The Tennessee public utility commission has the power after hearing upon notice, by order in writing, to fix just and reasonable individual rates, joint rates, tolls, fares, charges or schedules thereof, as well as commutation, mileage, and other special rates which shall be imposed, observed, and followed thereafter by any public utility as defined in § 65-4-101, whenever the commission shall determine any existing individual rate, joint rate, toll, fare, charge, or schedule thereof or commutation, mileage, or other special rates to be unjust, unreasonable, excessive, insufficient, or unjustly discriminatory or preferential, howsoever the same may have heretofore been fixed or established. In fixing such rates, joint rates, tolls, fares, charges or schedules, or commutation, mileage or other special rates, the commission shall take into account the safety, adequacy and efficiency or lack thereof of the service or services furnished by the public utility.
  2. Notwithstanding any other state law, special rates and terms negotiated between public utilities that are telecommunications providers and business customers shall not constitute price discrimination. Such rates and terms shall be presumed valid. The presumption of validity of such special rates and terms shall not be set aside except by complaint or by action of the Tennessee public utility commission commissioners, which Tennessee public utility commission action or complaint is supported by substantial evidence showing that such rates and terms violate applicable legal requirements other than the prohibition against price discrimination. Records of such special rates and terms shall be retained by the telecommunications provider for the length of time that such rates and terms apply, but shall not be filed with the commission. Such rates shall be effective upon execution by the parties.
  3. Notwithstanding any other law, the tariffs of incumbent local exchange telephone companies establishing rates or terms, or both, for telecommunications services shall be filed with the commission and shall be effective twenty-one (21) days after filing, subject to the following requirements:
    1. Tariffs establishing rates or terms that are valid only for one hundred eighty (180) days or less shall be effective one (1) business day after filing;
    2. Tariffs may be revoked by the commission after notice and a hearing;
      1. Tariffs may be suspended pending such hearing on a showing by a complaining party that:
        1. The complaining party has filed a complaint before the commission alleging with particularity that the tariff violates a specific law;
        2. The complaining party would be injured as a result of the tariff and has specifically alleged how it would be so injured; and
        3. The complaining party has a substantial likelihood of prevailing on the merits of its complaint;
      2. The commission may suspend a tariff pending a hearing, on its own motion, upon finding such suspension to be in the public interest. The standard established herein for suspension of tariffs shall apply at all times including the twenty-one (21) or one (1) day period between filing and effectiveness;
      3. The standard established herein for suspension of tariffs shall not be applicable in any way to the determination by the commission of whether to convene a contested case to consider revocation of a tariff. The commission may choose to convene a contested case, or decline to convene a contested case, in its own discretion, to promote the public interest. The standard established in this subdivision (c)(3) for suspension of tariffs shall not be applicable in any way to any decision by the commission regarding revocation of a tariff;
    3. Nothing in this subsection (c) shall alter the existing power of the commission to review those rate increases that are governed by price regulation or rate of return; and
    4. Notwithstanding this subsection (c), the commission may, in its discretion, shorten the twenty-one (21) day period between filing and effectiveness for good cause shown.
  4. In fixing rates, joint rates, tolls, fares, charges, or schedules for service, no privately owned public utility that supplies water to municipal governments is allowed to charge rates, joint rates, tolls, fares, charges, or schedules of any kind whatsoever in connection with fire hydrant service to a municipal government providing fire protection services within the service area. The utility, however, may recover its costs of providing fire hydrant service by charging rates, joint rates, tolls, fares, charges or schedules to its non-municipal government customers within the service area as approved by the Tennessee public utility commission. New rates shall take effect as prescribed by the Tennessee public utility commission in a rate proceeding. Such rate proceeding shall be initiated by the utility or the Tennessee public utility commission itself. Such rate proceeding shall be commenced within 120 days after May 18, 2004. The utility shall continue to collect its current authorized rates from a municipality until new rates are placed into effect by the Tennessee public utility commission. The municipal government will reimburse the state for any consequent increase in expenditures to the state, up to fifty thousand dollars ($50,000), which results directly from this subsection (d).

Acts 1919, ch. 49, § 4; Shan. Supp., § 3059a87; Code 1932, § 5450; Acts 1974, ch. 470, § 1; T.C.A. (orig. ed.), § 65-518; Acts 1995, ch. 305, § 23; 2003, ch. 41, § 1; T.C.A. § 65-5-201; Acts 2004, ch. 545, § 1; 2004, ch. 716, § 1; 2005, ch. 173, § 1; 2017, ch. 94, § 52.

Compiler's Notes. Former part 1, §§ 65-5-10165-5-115 (Acts 1897, ch. 10, §§ 8, 15-24, 34; 1907, ch. 390, § 2; Shan., §§ 3059a22, 3059a40-3059a45, 3059a47-3059a54, 3059a83; Code 1932, §§ 5397, 5416-5421, 5423-5430, 5446; Acts 1953, ch. 230, § 2 (Williams § 5470.4); impl. am. 1955, ch. 69, § 1; 1957, ch. 273, § 1; T.C.A. (orig. ed.), §§ 65-501 — 65-517; Acts 1989, ch. 591, § 13; 1995, ch. 305, § 21), concerning regulation of freight carriers, was repealed by Acts 1997, ch. 39, § 1, effective April 2, 1997.

Acts 2004, ch. 716, § 2 provided that the provisions of this act shall not apply to utility districts heretofore or hereafter created under the “Utility District Act of 1937,” compiled in title 7, chapter 82.

Amendments. The 2017 amendment, throughout the section, substituted “Tennessee public utility commission” for “Tennessee regulatory authority”, and substituted “The commission” for “The authority”, and  “the commission” for “the authority”; and substituted “Tennessee public utility commission commissioners” for “Tennessee regulatory authority directors” in the second sentence of (b).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Attorney General Opinions. County authority to establish rates for privately owned utility franchise, OAG 97-114, 1997 Tenn. AG LEXIS 148 (8/14/97).

Constitutionality of discount utility rates for senior citizens.  OAG 12-26, 2012 Tenn. AG LEXIS 26 (2/29/12).

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Gas Companies, § 5; 21 Tenn. Juris., Public Service Commissions, § 5.

NOTES TO DECISIONS

1. Fixing of Rates.

The right to control rates charged by a public utility remains in the general assembly and cannot be exercised by a municipality except under grant of power from the general assembly. Grant of power to municipality to enact ordinances for “the general welfare” does not authorize regulation of rates. Cumberland Tel. & Tel. Co. v. Memphis, 200 F. 657, 1912 U.S. App. LEXIS 1889 (6th Cir. Tenn. 1912).

Provisions of municipal ordinances are nugatory so far as they conflict with the state's power to regulate rates. Lewis v. Nashville Gas & Heating Co., 162 Tenn. 268, 40 S.W.2d 409, 1930 Tenn. LEXIS 88 (1931).

The power to establish rates is a legislative one, and the court's only power is to correct errors after rates are fixed. McCollum v. Southern Bell Tel. & Tel. Co., 163 Tenn. 277, 43 S.W.2d 390, 1931 Tenn. LEXIS 112 (1931); Williams v. Southern Bell Tel. & Tel. Co., 164 Tenn. 313, 47 S.W.2d 758, 1931 Tenn. LEXIS 36 (1932).

While commission (now authority) in fixing rates must necessarily, within reason, fix a certain definite period on which they establish the rate base, in considering this period they should also consider the experiences of the past in reference to experiences of the future and fix the rate with reference to what possibly may happen in the future. Southern Bell Tel. & Tel. Co. v. Tennessee Public Service Com., 202 Tenn. 465, 304 S.W.2d 640, 1957 Tenn. LEXIS 413 (1957).

This section purports to give the commission (now authority) power over rates of all public utilities; thus the commission (now commission) had the authority to require railroad companies operating in the state to open certain interchanges and to establish joint rates in connection with intrastate shipments. Louisville & N. R. Co. v. Tennessee Public Service Com., 542 S.W.2d 813, 1976 Tenn. LEXIS 523 (Tenn. 1976).

Where the wholly-owned subsidiary was nothing more than an operating division of the parent, it was proper for the public service commission (now authority) to consider the sales made by parent to subsidiary in fixing the rates to be applied to the subsidiary, despite the fact that the two corporations had independent corporate structures. Tennessee Public Service Com. v. Nashville Gas Co., 551 S.W.2d 315, 1977 Tenn. LEXIS 521 (Tenn. 1977), cert. denied, 434 U.S. 904, 98 S. Ct. 301, 54 L. Ed. 2d 191, 1977 U.S. LEXIS 3656 (1977), cert. denied, Nashville Gas Co. v. Tennessee Public Service Com., 434 U.S. 904, 98 S. Ct. 301, 54 L. Ed. 2d 191, 1977 U.S. LEXIS 3656 (1977).

There is no requirement in any rate case that the commission receive and consider cost of service data, or that such data, if in the record, are to be accorded exclusivity. CF Industries v. Tennessee Public Service Com., 599 S.W.2d 536, 1980 Tenn. LEXIS 455 (Tenn. 1980).

The criteria by which the commission (now authority) should be guided have received only generalized comments in reported decisions, which is proper because the courts are playing a limited role in reviewing actions which essentially are legislative in character. CF Industries v. Tennessee Public Service Com., 599 S.W.2d 536, 1980 Tenn. LEXIS 455 (Tenn. 1980).

Rates need not be determined using definite rules or precise formulas; a rate need only fall within the “zone of reasonableness” that takes into consideration the interests of both the consumer and the utility. Tennessee Cable Television Ass'n v. Tennessee Public Service Com., 844 S.W.2d 151, 1992 Tenn. App. LEXIS 583 (Tenn. Ct. App. 1992).

A rate should be reasonable not only when it is first established but also for a reasonable time thereafter. Tennessee Cable Television Ass'n v. Tennessee Public Service Com., 844 S.W.2d 151, 1992 Tenn. App. LEXIS 583 (Tenn. Ct. App. 1992).

A telephone company's financial integrity and the adequacy of its service are inextricably linked in rate-making and adequacy-of-service proceedings; accordingly, the public service commission (now authority) must consider the adequacy of the company's service when it is fixing rates, and must consider the company's financial condition before requiring it to establish new service or to expand existing service. Tennessee Cable Television Ass'n v. Tennessee Public Service Com., 844 S.W.2d 151, 1992 Tenn. App. LEXIS 583 (Tenn. Ct. App. 1992).

The commission (now authority) has the discretion to choose a historical test period, a forecast period, a combination of the two, or any other accepted method in rate making. American Ass'n of Retired Persons v. Tennessee Pub. Serv. Comm'n, 896 S.W.2d 127, 1994 Tenn. App. LEXIS 532 (Tenn. Ct. App. 1994).

Tennessee Regulatory Authority did not err in utilizing a federal income tax return filed by a pipeline's previous owner to establish the pipeline's value for the purpose of determining the rate bas because its decision to exclude the purchase price of the pipeline and wells from the rate base was supported by substantial and material evidence; A consumer advocate's witness opined that the tax return was the most reliable information concerning the prior owner's assessment of value. Pipeline, LLC v. Tenn. Regulatory Auth., — S.W.3d —, 2017 Tenn. App. LEXIS 733 (Tenn. Ct. App. Aug. 24, 2017).

2. Procedure Before Commission.

On application by a complainant as to rates of a utility corporation for a postponement of hearing, a requirement by the commission (now authority) that an affidavit be filed showing grounds for postponement was reasonable and a failure to comply was an abandonment of the proceeding. Williams v. Southern Bell Tel. & Tel. Co., 164 Tenn. 313, 47 S.W.2d 758, 1931 Tenn. LEXIS 36 (1932).

The original jurisdiction of the commission (now authority) may not be defeated by invoking its action without offering proof to sustain the petition, and then, after the commission (now authority) has acted, by seeking a hearing de novo in the circuit court by certiorari. Williams v. Southern Bell Tel. & Tel. Co., 164 Tenn. 313, 47 S.W.2d 758, 1931 Tenn. LEXIS 36 (1932).

There is a presumption that, before rates are ordered to be put into effect, the commission (now authority) complied with its legal duty as prescribed by this section by giving the utility proper notice and hearing. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

Order of the commission (now authority) in reducing the rates for electricity in a certain city without the hearing provided for in this section was not wholly void but at most, voidable at the insistence of the utility. Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636, 1944 Tenn. LEXIS 349 (1944).

3. Review.

Common-law certiorari is available to afford relief against arbitrary or oppressive action by the commission amounting to abuse of discretion or refusal to perform its statutory duty. Williams v. Southern Bell Tel. & Tel. Co., 164 Tenn. 313, 47 S.W.2d 758, 1931 Tenn. LEXIS 36 (1932).

Where chancery court found that amount of increase allowed by commission (now authority) was arbitrary and confiscatory the remand of the case to the commission for the fixing of a reasonable rate was proper. Southern Continental Tel. Co. v. Railroad & Public Utilities Com., 201 Tenn. 692, 301 S.W.2d 387, 1957 Tenn. LEXIS 352 (1957).

4. Eminent Domain.

The installation of a telephone cable within an existing railroad right of way, pursuant to an agreement between the telephone company and the railroad company, was a taking under the law of eminent domain, for which the owners of the freehold estates were entitled to compensation. Buhl v. U.S. Sprint Communications Co., 840 S.W.2d 904, 1992 Tenn. LEXIS 574 (Tenn. 1992).

Collateral References.

Advertising or promotional expenditures of public utility as part of operating expenses for ratemaking purposes. 83 A.L.R.3d 963.

Amortization of cost of road, right to rates which will permit. 9 A.L.R. 1232.

Charitable contributions by public utility as part of operating expense. 59 A.L.R.3d 941.

Consideration of body of rates in determining the reasonableness of carrier's rates for a particular commodity. 15 A.L.R. 185.

Special services or facilities afforded by shipper as a factor in fixing carrier's rates. 25 A.L.R. 191.

Validity of “fuel adjustment” or similar clauses authorizing electric utility to pass on increased cost of fuel to its customers. 83 A.L.R.3d 933.

65-5-102. Commission may require filing of schedules.

The commission has the power to require every such public utility to file with it complete schedules of every classification employed and of every individual or joint rate, toll, fare, or charge made or exacted by it for any product supplied or service rendered within this state as specified in such requirement.

Acts 1919, ch. 49, § 4; Shan. Supp., § 3059a87; Code 1932, § 5450; T.C.A. (orig. ed.), § 65-519; Acts 1995, ch. 305, § 23; T.C.A. § 65-5-202; Acts 2017, ch. 94, § 52.

Amendments. The 2017 amendment substituted “The commission” for “The authority” at the beginning of the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Gas Companies, § 5.

65-5-103. Changes in utility rates, fares, schedules — Implementation of alternative regulatory methods to allow for public utility rate reviews and cost recovery in lieu of a general rate case proceeding.

  1. When any public utility shall increase any existing individual rates, joint rates, tolls, fares, charges, or schedules thereof, or change or alter any existing classification, the commission  shall have power either upon written complaint, or upon its own initiative, to hear and determine whether the increase, change or alteration is just and reasonable. The burden of proof to show that the increase, change, or alteration is just and reasonable shall be upon the public utility making the same. In determining whether such increase, change or alteration is just and reasonable, the commission  shall take into account the safety, adequacy and efficiency or lack thereof of the service or services furnished by the public utility. The commission  shall have authority pending such hearing and determination to order the suspension, not exceeding three (3) months from the date of the increase, change, or alteration until the commission  shall have approved the increase, change, or alteration; provided, that if the investigation cannot be completed within three (3) months, the commission  shall have authority to extend the period of suspension for such further period as will reasonably enable it to complete its investigation of any such increase, change or alteration; and provided further, that the commission  shall give the investigation preference over other matters pending before it and shall decide the matter as speedily as possible, and in any event not later than nine (9) months after the filing of the increase, change or alteration. It shall be the duty of the commission  to approve any such increase, change or alteration upon being satisfied after full hearing that the same is just and reasonable.
    1. If the investigation has not been concluded and a final order made at the expiration of six (6) months from the date filed of any such increase, change or alteration, the utility may place the proposed increase, change or alteration, or any portion thereof, in effect at any time thereafter prior to the final commission  decision thereon upon notifying the commission, in writing, of its intention so to do; provided, that the commission  may require the utility to file with the commission  a bond in an amount equal to the proposed annual increase conditioned upon making any refund ordered by the commission  as provided in subdivision (b)(2).
    2. Where increased rates or charges are thus made effective, the interested utility shall maintain its records in such a manner as will enable it, or the commission, to determine the amounts to be refunded and to whom due, in the event a refund is subsequently ordered by the commission as provided in this subdivision (b)(2). Upon completion of the hearing and decision, the commission  may order the utility to refund, to the persons in whose behalf such amounts were paid, such portion of such increase, change or alteration as shall have been collected under bond and subsequently disallowed by the commission. If the commission, at any time during the initial three (3) months' suspension period, finds that an emergency exists or that the utility's credit or operations will be materially impaired or damaged by the failure to permit the rates to become effective during the three-month period, the commission  may permit all or a portion of the increase, change or alteration to become effective under such terms and conditions as the commission  may by order prescribe. Any increase, change or alteration placed in effect under this subsection (b) under bond may be continued in effect by the utility, pending final determination of the proceeding by final order of the commission  or, if the matter be appealed, by final order of the appellate court. Should the final order of the commission  be appealed while increased rates or charges are being collected under bond, the court shall have power to order an increase or decrease in the amount of the bond as the court may determine to be proper. In the event that all or any portion of such rates or charges have not been placed into effect under bond before the commission, the court considering an appeal from an order of the commission  shall have the power to permit the utility to place all or any part of the rates or charges into effect under bond.
  2. In the event the commission, by order, directs any utility to make a refund, as provided in subsection (b), of all or any portion of such increase, change or alteration, the utility shall make the same within ninety (90) days after a final determination of the proceeding by final order of the commission  or, if the matter be appealed, by final order of the appellate court, with lawful interest thereon.
      1. The commission  is authorized to implement alternative regulatory methods to allow for public utility rate reviews and cost recovery in lieu of a general rate case proceeding before the commission.
      2. For all alternative regulatory methods, the commission  is authorized to develop minimum filing requirements and procedural schedules; provided, however, that a final determination of the commission  pursuant to any alternative regulatory method be made by the commission  no later than one hundred twenty (120) days from the initial filing by the public utility.
      3. If the commission  denies an alternative regulatory method filed by a public utility, the commission  shall set forth with specificity the reasons for its denial and the public utility shall have the right to refile, without prejudice, an amended plan or amendment within sixty (60) days of the issuance of a final order. The commission  shall thereafter have sixty (60) days to approve or deny the amended plan or amendment.
      1. A public utility may request and the commission  may authorize a mechanism to recover the operational expenses, capital costs or both, if such expenses or costs are found by the commission  to be in the public interest, related to any one (1) of the following:
        1. Safety requirements imposed by the state or federal government;
        2. Ensuring the reliability of the public utility plant in service;
        3. Replacement of or upgrades to usage measurement devices; or
        4. Weather-related natural disasters.
      2. The commission  shall grant recovery and shall authorize a separate recovery mechanism or adjust rates to recover operational expenses, capital costs or both associated with the investment in such safety and reliability facilities, including the return on safety and reliability investments at the rate of return approved by the commission  at the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a), upon a finding that such mechanism or adjustment is in the public interest.
      1. A public utility may request and the commission  may authorize a mechanism to recover the operational expenses, capital costs or both related to the expansion of infrastructure for the purpose of economic development, if such expenses or costs are found by the commission  to be in the public interest. Expansion of economic development infrastructure may include, but is not limited to, the following:
        1. Infrastructure and equipment associated with alternative motor vehicle transportation fuel;
        2. Infrastructure and equipment associated with combined heat and power installations in industrial or commercial sites; and
        3. Infrastructure that will provide opportunities for economic development benefits in the area to be directly served by the infrastructure.
      2. The commission  shall grant recovery and shall authorize a separate recovery mechanism or adjust rates to recover operational expenses, capital costs or both associated with the investment in such economic development facilities, including the return on such economic development investments at the rate of return approved by the commission  at the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a), upon a finding that such mechanism or adjustment is in the public interest.
        1. A public utility may request and the commission  may authorize a mechanism to recover expenses associated with efforts to promote economic development in its service territory, if such expenses are found by the commission  to be in the public interest.
        2. Efforts to promote economic development may include, but are not limited to, foregone revenues associated with economic development riders and rates.
        3. Expenses described in subdivision (d)(4)(A)(ii) may be reflected in cost of service and be subject to recovery through the annual review process in subdivision (d)(6).
      1. Upon a finding that expenses to promote economic development have been incurred, the commission  shall authorize a separate recovery mechanism or adjust rates to recover such expenses or grant recovery through the annual review process set forth in subdivision (d)(6), upon a finding that such mechanism or adjustment is in the public interest.
      1. A public utility may request and the commission  may authorize a mechanism to recover the operational expenses, capital costs or both related to other programs that are in the public interest.
      2. A utility may request and the commission  may authorize a mechanism to allow for and permit a more timely adjustment of rates resulting from changes in essential, nondiscretionary expenses, such as fuel and power and chemical expenses.
      3. Upon a finding that such programs are in the public interest, the commission  shall grant recovery and shall authorize a separate recovery mechanism or adjust rates to recover operational expenses, capital costs or both associated with the investment in other programs, including the rate of return approved by the commission  at the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a).
      1. A public utility may opt to file for an annual review of its rates based upon the methodology adopted in its most recent rate case pursuant to § 65-5-101 and subsection (a), if applicable.
      2. In order for a public utility to be eligible to make an election to opt into an annual rate review, the public utility must have engaged in a general rate case pursuant to § 65-5-101 and subsection (a) within the last five (5) years; provided, however, that the commission  may waive such requirement or increase the eligibility period upon a finding that doing such would be in the public interest.
      3. Pursuant to the procedures set forth in subdivision (d)(1), the commission  shall review the annual filing by the public utility within one hundred twenty (120) days of receipt and order the public utility to make the adjustments to its tariff rates to provide that the public utility earns the authorized return on equity established in the public utility's most recent general rate case pursuant to § 65-5-101 and subsection (a).
        1. A public utility may terminate an approved annual review plan only by filing a general rate case pursuant to § 65-5-101 and subsection (a).
        2. The commission  may terminate an approved annual review plan only after citing the public utility to appear and show cause why the commission  should not take such action pursuant to the procedures in § 65-2-106.
        3. The commission  or the public utility may propose a modification to the approved annual review plan for consideration by the commission. The commission  shall determine whether any proposed modification is in the public interest and should be approved within the time frame set forth in subdivision (d)(6)(C). If the commission  denies a modification to the approved annual review plan, the commission  shall set forth with specificity the reasons for its denial.
    1. In addition to the alternative regulatory methods described in this subsection (d), a public utility may opt to file for other alternative regulatory methods. Upon a filing by a public utility for an alternative method not prescribed, the commission  is empowered to adopt policies or procedures, that would permit a more timely review and revisions of the rates, tolls, fares, charges, schedules, classifications or rate structures of public utilities, and that would further streamline the regulatory process and reduce the cost and time associated with the ratemaking processes in § 65-5-101 and subsection (a).
  3. For purposes of this section, “public utility” does not include a telecommunications carrier that elects market regulation pursuant to § 65-5-109.

Acts 1919, ch. 49, § 5; Shan. Supp. § 3059a88; Code 1932, § 5451; Acts 1973, ch. 59, § 1; 1974, ch. 470, § 2; T.C.A. (orig. ed.), § 65-520; Acts 1983, ch. 347, § 1; 1995, ch. 305, § 23; T.C.A. § 65-5-203; Acts 2013, ch. 245, § 5; 2017, ch. 94, § 52; 2019, ch. 95, § 1.

Amendments. The 2017 amendment substituted “the commission” for “the authority” and “The commission” for “The authority” throughout the section.

The 2019 amendment added present (d)(2)(A)(iii) and resdesignated former (d)(2)(A)(iii) as present (d)(2)(A)(iv).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2019, ch. 95, § 2. March 28, 2019.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Public Service Commissions, § 5.

NOTES TO DECISIONS

1. Constitutionality.

The power to suspend rate increase is valid. Cumberland Tel. & Tel. Co. v. Railroad & Public Utilities Com., 287 F. 406, 1921 U.S. Dist. LEXIS 1569 (D. Tenn. 1921).

Former § 65-2-203(d) was held unconstitutional as class legislation in violation of Tenn. Const., art. I, § 8 and the due process clause of the U.S. Constitution. See Tennessee-American Water Co. v. Leech, In the Chancery Court for Davidson County (No. 83-1424-I, filed and entered Nov. 11, 1983).

2. Rate Increase.

Determination by the commission (now authority) as to the reasonableness of increase in rates by utility involves not merely an approval or disapproval in its entirety, but the extent, if any, to which it may be approved, it being permissible to approve a rate increase in part. Cumberland Tel. & Tel. Co. v. Railroad & Public Utilities Com., 287 F. 406, 1921 U.S. Dist. LEXIS 1569 (D. Tenn. 1921).

Whenever a public utility increases its rates, if the commission (now authority) fails either to suspend such increase or to hear and determine as to its reasonableness within the time prescribed, such increase becomes effective, subject, however, to the right of the commission (now authority) at any time thereafter to prescribe reasonable rates after notice and hearing. Cumberland Tel. & Tel. Co. v. Railroad & Public Utilities Com., 287 F. 406, 1921 U.S. Dist. LEXIS 1569 (D. Tenn. 1921).

Commission's (now authority's) use of average year rate base instead of year-end rate base in determining telephone company rate increase is discretionary. Powell Tel. Co. v. Tennessee Public Service Com., 660 S.W.2d 44, 1983 Tenn. LEXIS 738 (Tenn. 1983).

Tennessee Regulatory Authority did not err in utilizing a federal income tax return filed by a pipeline's previous owner to establish the pipeline's value for the purpose of determining the rate bas because its decision to exclude the purchase price of the pipeline and wells from the rate base was supported by substantial and material evidence; A consumer advocate's witness opined that the tax return was the most reliable information concerning the prior owner's assessment of value. Pipeline, LLC v. Tenn. Regulatory Auth., — S.W.3d —, 2017 Tenn. App. LEXIS 733 (Tenn. Ct. App. Aug. 24, 2017).

3. Suspension of Rate Increase.

Where increase is without commission's (now authority's) permission, it may be suspended for a hearing and determination as to its reasonableness. The rate becomes fixed if the commission (now authority) fails to so suspend or determine within the prescribed time. A suspension affects every intermediate increase involved. Any suspension must be for a definite time, or it will be invalid except so far as the order suspends for three months. Cumberland Tel. & Tel. Co. v. Railroad & Public Utilities Com., 287 F. 406, 1921 U.S. Dist. LEXIS 1569 (D. Tenn. 1921).

Where existing rates claimed by the utility to be confiscatory have not been imposed upon it by any act of the commission (now authority), but were voluntarily established by the company itself, with the approval of the commission (now authority), and notice is given by the utility of an increased rate, enforcement of an order of the commission (now authority) suspending the increase pending a reasonable period of investigation will not be enjoined on the theory that the existing rates are confiscatory. Cumberland Tel. & Tel. Co. v. Railroad & Public Utilities Com., 287 F. 406, 1921 U.S. Dist. LEXIS 1569 (D. Tenn. 1921).

4. “Written Complaint.”

A “written complaint” contesting a proposed rate increase must meet the requirements for specificity set forth in the rules governing the Tennessee regulatory authority; a vague and nonspecific petition in which the petitioner seeks to intervene to determine the justness and reasonableness of the proposed rate so that it does not prejudice Tennessee consumers does not constitute a “written complaint.” Consumer Advocate Div. v. Greer, 967 S.W.2d 759, 1998 Tenn. LEXIS 185 (Tenn. 1998).

5. Contested Case Hearing.

The language of T.C.A. § 65-5-203 [now § 65-5-103] stating that the authority has the power to convene a contested case hearing implies that such a hearing is not mandatory in every case in which a complaint is filed contesting a rate increase and that the authority has the discretion to decide whether a hearing should be convened or not. Consumer Advocate Div. v. Greer, 967 S.W.2d 759, 1998 Tenn. LEXIS 185 (Tenn. 1998).

Where the payphone company had established a rate that it knew was subject to review by the Tennessee regulatory authority (TRA), the TRA had authority to order that payphone company make interest payments on all overpayments by its customers. Bellsouth Telcoms. v. Tenn. Regulatory Auth., 98 S.W.3d 666, 2002 Tenn. App. LEXIS 505 (Tenn. Ct. App. 2002), appeal denied, Tenn. Tegulatory Auth., 2002 Tenn. LEXIS 729 (Tenn. Dec. 23, 2002).

6. Burden of Proving Rate Impropriety.

Under T.C.A. § 65-5-203 [now § 65-5-103] the power to determine whether rates are “just and reasonable” is reposed in the commission (now authority); there is a presumption that the rates so established are correct and any party who attacks the commission's (now authority's) findings has the burden of proving that they are illegal or unjust and unreasonable. CF Industries v. Tennessee Public Service Com., 599 S.W.2d 536, 1980 Tenn. LEXIS 455 (Tenn. 1980).

7. Amount Bonded.

This section authorizes the court having the cause under consideration to permit all or any part of the proposed increase to be placed in effect under bond. South Cent. Bell Tel. Co. v. Tennessee Public Service Com., 579 S.W.2d 429, 1979 Tenn. App. LEXIS 305 (Tenn. Ct. App. 1979).

8. Temporary Relief.

Among the considerations involved in allowance of temporary relief before final decision are: (1) The probability of irreparable harm to the applicant if the relief is not granted; (2) The probability of irreparable harm to the opposite party if the relief is granted; and (3) The probability that the temporary relief will be affirmed by the final decision. South Cent. Bell Tel. Co. v. Tennessee Public Service Com., 579 S.W.2d 429, 1979 Tenn. App. LEXIS 305 (Tenn. Ct. App. 1979).

9. Retroactive Rate-Making Authority.

The general assembly never intended to extend retroactive rate-making power (ordering refunds) beyond that expressly stated in this section. South Cent. Bell Tel. Co. v. Tennessee Public Service Com., 675 S.W.2d 718, 1984 Tenn. App. LEXIS 3418 (Tenn. Ct. App. 1984).

Although the public service commission (now authority) had the authority to reopen a case for the purpose of changing previously approved rates, it did not have the authority to reserve the right to change rates retroactively, thereby requiring a refund. South Cent. Bell Tel. Co. v. Tennessee Public Service Com., 675 S.W.2d 718, 1984 Tenn. App. LEXIS 3418 (Tenn. Ct. App. 1984).

65-5-104. Unjust rate, fare, schedule or classification prohibited.

  1. No public utility shall:
    1. Make, impose, or exact any unreasonable, unjustly discriminatory or unduly preferential individual or joint rate, or special rate, toll, fare, charge, or schedule for any product, or service supplied or rendered by it within this state; or
    2. Adopt or impose any unjust or unreasonable classification in the making or as the basis of any rate, toll, charge, fare, or schedule for any product or service rendered by it within this state.
  2. Any measure taken by any public utility to avoid discrimination in rates, charges, fees and in the availability and quality of energy against consumers using solar- or wind-powered equipment as a source of energy shall not be considered unreasonable, unjust, or unduly preferential in violation of this section, unless such customers do not have sufficient safety equipment to protect the suppliers from damage.

Acts 1919, ch. 49, § 6; Shan. Supp., § 3059a89; Code 1932, § 5452; Acts 1980, ch. 756, § 3; T.C.A. (orig. ed.), § 65-521; Acts 1995, ch. 305, § 23; T.C.A. § 65-5-204.

Cross-References. Discrimination against consumers using solar- or wind-powered equipment prohibited, § 65-4-105.

Municipal public works, discrimination against consumers using auxiliary energy sources, § 7-34-114.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Monopolies and Restraints of Trade, § 4.

NOTES TO DECISIONS

1. Anti-Discrimination Clause.

Allowing the defense of equitable estoppel to the claim of a utility for an indebtedness due to underbilling would result in a violation of the anti-discrimination clause of T.C.A. § 65-5-204. Memphis Light, Gas & Water Div., Div. of Memphis v. Auburndale School System, 705 S.W.2d 652, 1986 Tenn. LEXIS 655 (Tenn. 1986).

65-5-105. Intrastate rate reductions reflecting tax savings.

Any public utility, the maximum rates of which are fixed by the commission, shall reduce its intrastate rates to reflect any tax savings resulting from Acts 1989, ch. 312. Such rate reduction shall be implemented contemporaneously with the effective date of the tax savings.

Acts 1989, ch. 312, § 1; 1995, ch. 305, § 23; T.C.A. § 65-5-205; Acts 2017, ch. 94, § 52.

Compiler's Notes. For codification of Acts 1989, ch. 312, see the Session Law Disposition Table in Volume 13.

Amendments. The 2017 amendment substituted “commission” for “authority” in the first sentence.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-106. Operator-assisted telephone services — Carriers whose rates exceed maximum approved rates.

  1. Any telephone carrier offering or providing operator-assisted services in Tennessee whose intrastate rates exceed the maximum rate approved by the Tennessee public utility commission or whose interstate rates exceed the maximum rates approved by the federal communications commission (FCC) shall before providing the service:
    1. Identify by name the carrier providing the service;
    2. State all costs for providing the service; and
    3. Offer to switch the customer to any other carrier offering operator-assisted services and inform the customer that the switch will be made without charge.
  2. As used in this section:
    1. “Maximum rate approved by the federal communications commission (FCC)” means the highest legal rate charged for handling an identical call by a carrier which has been classified by the FCC as a dominant, interstate carrier or, if no carrier has been so classified, means the highest rate approved by the FCC as just and reasonable for an identical call;
    2. “Maximum rate approved by the Tennessee public utility commission” means the highest legal rate charged for handling an identical call by a carrier whose rates have been fixed by the commission based on the carrier's cost of providing service; and
    3. “Operator-assisted services” means all telephone calls in which the customer is assisted by either a human or mechanical operator and includes, but is not limited to, calls billed to credit cards or third parties and all collect or person-to-person calls.
  3. The commission may exempt any carrier from some or all of the provisions of this section upon a finding that the requirements are no longer necessary to protect the public interest.
  4. Any telephone carrier violating this section is guilty of violating the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1, and shall be punished accordingly.

Acts 1990, ch. 675, § 1; 1995, ch. 305, § 23; T.C.A. § 65-5-206; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1990, ch. 675, § 3 provided that this section apply only to telephone calls which originate in Tennessee and which are billed to an address located within Tennessee.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in (a) and (b)(2); and substituted “commission” for “authority” in (b)(2) and (c).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Attorney General Opinions. A long-distance telephone service reseller may charge a fee of eighty-five cents each time that it provides intrastate long distance directory assistance to Tennessee customers, OAG 00-133, 2000 Tenn. AG LEXIS 134 (8/18/00).

65-5-107. Universal service — Funding.

  1. In order to ensure the availability of affordable residential basic local exchange telephone service, the commission shall formulate policies, promulgate rules and issue orders which require all telecommunications service providers to contribute to the support of universal service.
  2. The commission shall create an alternative universal service support mechanism that replaces current sources of universal service support only if it determines that the alternative will preserve universal service, protect consumer welfare, be fair to all telecommunications service providers, and prevent the unwarranted subsidization of any telecommunications service provider's rates by consumers or by another telecommunications service provider. To accomplish these objectives, the commission, if it creates or subsequently modifies an alternative universal service support mechanism, shall:
    1. Restrict recovery from the mechanism by any telecommunications service provider to an amount equal to the support necessary to provide universal service;
    2. Consider provision of universal service by incumbent local exchange telephone companies and by other telecommunications service providers;
    3. Order only such contributions to the universal service support mechanism as are necessary to support universal service and fund administration of the mechanism;
    4. Administer the universal service support mechanism in a competitively neutral manner, and in accordance with established commission rules and federal statutes;
    5. Determine the financial effect on each universal service provider caused by the creation or a modification of the universal service support mechanism, and rebalance the effect through a one-time adjustment of equal amount to the rates of that provider;
    6. When ordering a modification, include changes in the cost of providing universal service in the rebalancing required by subdivision (b)(5);
    7. When performing its duties under subdivisions (b)(5) and (6), order no increase in the rates for any interconnection services; and
    8. Consider, at a minimum:
      1. The amount by which the embedded cost of providing residential basic local exchange telephone service exceeds the revenue received from the service, including the cost of the carrier-of-last-resort obligation, for both high- and low-density service areas;
      2. The extent to which rates for residential basic local exchange telephone service should be required to meet the standards of § 65-5-108(c); and
      3. Intrastate access rates and the appropriateness of such rates as a significant source of universal service support.
  3. The commission shall monitor the continued functioning of universal service mechanisms and shall conduct investigations, issue show cause orders, entertain petitions or complaints, or adopt rules in order to assure that the universal service mechanism is modified and enforced in accordance with the criteria set forth in this section.
  4. Nothing in this section shall be construed to require the commission to raise residential basic local exchange telephone service rates.
  5. Any universal service support mechanism created pursuant to this part shall hereafter be known as the universal service program. To implement any such universal service program, there is established a special reserve account in the state's general fund to be funded and allocated in accordance with this section and rules promulgated by the commission. Such fund shall be known as the universal service program support mechanism fund. Moneys from the fund may be expended in accordance with such universal service program. Any moneys deposited in the fund shall remain in such account until expended for purposes consistent with such program and shall not revert to the general fund on any June 30. Any interest earned by deposits in such account shall not revert to the general fund on any June 30 but shall remain in such account until expended for purposes consistent with the universal service program.

Acts 1995, ch. 408, § 4; 2001, ch. 124, § 1; T.C.A. § 65-5-207; Acts 2013, ch. 61, § 1; 2017, ch. 94, § 52.

Code Commission Notes.

Former subsection (b), concerning the initiation of a generic contested case proceeding within thirty (30) days of June 6, 1995, was deemed obsolete by the Code Commission in 2004.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Attorney General Opinions. Authority's right to retain interest from universal service fund, OAG 98-0177, 1998 Tenn. AG LEXIS 177 (8/28/98).

65-5-108. Classification of services — Exempt services — Price floor — Maximum rates for non-basic services.

  1. Services of incumbent local exchange telephone companies who apply for price regulation under § 65-5-109 are classified as follows:
    1. “Basic local exchange telephone services” are telecommunications services which are comprised of an access line, dial tone, touch-tone and usage provided to the premises for the provision of two-way switched voice or data transmission over voice grade facilities of residential customers or business customers within a local calling area, Lifeline, Link-Up Tennessee, 911 Emergency Services and educational discounts existing on June 6, 1995, or other services required by state or federal statute. These services shall, at a minimum, be provided at the same level of quality as is being provided on June 6, 1995. Rates for these services shall include both recurring and nonrecurring charges.
    2. “Non-basic services” are telecommunications services which are not defined as basic local exchange telephone services and are not exempted under subsection (b). Rates for these services shall include both recurring and nonrecurring charges.
  2. The commission, after notice and opportunity for hearing, may find that the public interest and the policies set forth in this part are served by exempting a service or group of services from all or a portion of the requirements of this part. Upon making such a finding, the commission may exempt telecommunications service providers from such requirements as appropriate. The commission shall in any event exempt a telecommunications service for which existing and potential competition is an effective regulator of the price of those services.
  3. Effective January 1, 1996, an incumbent local exchange telephone company shall adhere to a price floor for its competitive services subject to such determination as the commission shall make pursuant to § 65-5-107. The price floor shall equal the incumbent local exchange telephone company's tariffed rates for essential elements utilized by competing telecommunications service providers plus the total long-run incremental cost of the competitive elements of the service. When shown to be in the public interest, the commission shall exempt a service or group of services provided by an incumbent local exchange telephone company from the requirement of the price floor. The commission shall, as appropriate, also adopt other rules or issue orders to prohibit cross-subsidization, preferences to competitive services or affiliated entities, predatory pricing, price squeezing, price discrimination, tying arrangements or other anti-competitive practices.
  4. The maximum rate for any new non-basic service first offered after June 6, 1995, shall not exceed the stand-alone cost of the service.

Acts 1995, ch. 408, § 9; T.C.A. § 65-5-208; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Amendments. The 2017 amendment substituted “commission” for “authority” throughout (b) and (c).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-109. Price regulation plan.

  1. Rates for telecommunications services are just and reasonable when they are determined to be affordable as set forth in this section. Using the procedures established in this section, the commission shall ensure that rates for all basic local exchange telephone services and non-basic services are affordable on the effective date of price regulation for each incumbent local exchange telephone company.
  2. An incumbent local exchange telephone company shall, upon approval of its application under subsection (c), be empowered to, and shall charge and collect only such rates that are less than or equal to the maximum permitted by this section and subject to the safeguards in § 65-5-108(c) and (d) and the non-discrimination provisions of this title.
  3. The commission shall enter an order within ninety (90) days of the application of an incumbent local exchange telephone company implementing a price regulation plan for such company. With the implementation of a price regulation plan, the rates existing on January 1, 2009, for all basic local exchange telephone services and non-basic services, as defined in § 65-5-108, are deemed affordable if the incumbent local exchange telephone company's earned rate of return on its most recent Tennessee public utility commission 3.01 report as audited by the commission staff pursuant to subsection (j) is equal to or less than the company's current authorized fair rate of return existing at the time of the company's application. If the incumbent local exchange telephone company's earned rate of return on its most recent Tennessee public utility commission 3.01 report as audited by the commission staff pursuant to subsection (j) is greater than the company's current authorized fair rate of return, the commission shall initiate a contested, evidentiary proceeding to establish the initial rates on which the price regulation plan is based. The commission shall initiate such a rate-setting proceeding to determine a fair rate of return on the company's rate base using the actual intrastate operating revenues, expenses, rate base and capital structure from the company's most recent Tennessee public utility commission 3.01 report as audited by the commission staff pursuant to subsection (j). If the incumbent local exchange telephone company's earned rate of return is less than its current authorized fair rate of return, the company may request the commission to initiate a contested, evidentiary proceeding to establish the initial rates upon which the price regulation plan is based. Upon request by the incumbent local exchange telephone company, the commission shall initiate such a contested, evidentiary proceeding using the same rate-setting procedures described above. Rates established pursuant to the above process shall be the initial rates on which a price regulation plan is based, subject to such further adjustment as may be made by the commission pursuant to § 65-5-107. Nothing in this section shall require a company that has elected price regulation prior to 2009 to reapply for price regulation or to reset its rates under its price regulation plan. Such a company is entitled, in its sole discretion, to the 1995 rates upon which its original election was based or may base its price regulation calculation upon rates in effect as of January 1, 2009.
  4. If not resolved by agreement, the commission shall, on petition of the competing telecommunications services provider, hold a contested case proceeding within thirty (30) days to establish initial rates for new interconnection services provided by an incumbent local exchange telephone company subsequent to June 6, 1995, which rates shall be set in accordance with Acts 1995, ch. 408. The commission shall issue a final order within twenty (20) days of the proceeding.
  5. A price regulation plan shall maintain affordable basic and non-basic rates by permitting a maximum annual adjustment that is capped at the lesser of one-half (½) the percentage change in inflation for the United States using the gross domestic product-price index (GDP-PI) from the preceding year as the measure of inflation, or the GDP-PI from the preceding year minus two (2) percentage points. An incumbent local exchange telephone company may adjust its rates for basic local exchange telephone services or non-basic services only so long as its aggregate revenues for basic local exchange telephone services or non-basic services generated by such changes do not exceed the aggregate revenues generated by the maximum rates permitted by the price regulation plan.
  6. Notwithstanding the annual adjustments permitted in subsection (e), the initial basic local exchange telephone service rates of an incumbent local exchange telephone company subject to price regulation shall not increase for a period of four (4) years from the date the incumbent local exchange telephone company becomes subject to such regulation. At the expiration of the four-year period, an incumbent local exchange telephone company is permitted to adjust annually its rates for basic local exchange telephone services in accordance with the method set forth in subsection (e); provided, that the rate for residential basic local exchange telephone service shall not be increased in any one (1) year by more than the percentage change in inflation for the United States using the gross domestic product-price index (GDP-PI) from the preceding year as the measure of inflation. Nothing in this subsection (f) shall be construed to prohibit or limit residential basic local exchange rate increases or aggregate revenues permitted in subsection (e) caused by:
    1. Revenue neutral rate proposals that rebalance access revenue or touchtone revenue to residential basic local exchange service;
    2. Revenue neutral rate proposals that expand local calling areas; or
    3. Rate regrouping when it is based on population growth or expanded local calling such that there is an increase in the number of lines that end-users within the rate group can reach by local calling and the rate group no longer corresponds to the rate group definitions in a carrier's approved tariffs.
  7. Notwithstanding any other provision of this section, a price regulation plan shall permit a maximum annual adjustment in the rates for interconnection services that is capped at the lesser of one-half (½) the percentage change in inflation for the United States using the gross domestic product-price index (GDP-PI) from the preceding year as the measure of inflation, or the GDP-PI from the preceding year minus two (2) percentage points. An incumbent local exchange telephone company may adjust its rates for interconnection services only so long as its aggregate revenues generated by such changes do not exceed the aggregate revenues generated by the maximum rates permitted by this subsection (g); provided, that each new rate must comply with the requirements of § 65-5-108 and the non-discrimination provisions of this title. Upon filing by a competing telecommunications service provider of a complaint, such rate adjustment shall become subject to commission review of the adjustment's compliance with this section and rules promulgated under this section. The commission shall stay the adjustment of rates and enter a final order approving, modifying or rejecting such adjustment within thirty (30) days of the complaint.
  8. Incumbent local exchange telephone companies subject to price regulation may set rates for non-basic services as the company deems appropriate, subject to the limitations set forth in subsections (e) and (g), the non-discrimination provisions of this title, any rules or orders issued by the commission pursuant to § 65-5-108(c) and upon prior notice to affected customers. Rates for call waiting service provided by an incumbent local exchange telephone company subject to price regulation shall not exceed, for a period of four (4) years from the date the company becomes subject to such regulation, the maximum rate in effect in the state for such service on January 1, 2009; provided, however, that the maximum rate shall not apply to companies becoming subject to that regulation after June 1, 2009.
  9. Incumbent local exchange telephone companies subject to price regulation are not required to seek regulatory approval of their depreciation rates or schedules.
  10. For any incumbent local exchange telephone company electing price regulation under subsection (c), the commission shall conduct an audit to assure that the Tennessee public utility commission 3.01 report accurately reflects, in all material respects, the incumbent local exchange telephone company's achieved results in accordance with generally accepted accounting principles as adopted in Part 32 of the uniform system of accounts, and the ratemaking adjustments to operating revenues, expenses and rate base used in the commission's most recent order applicable to the incumbent local exchange telephone company. Nothing herein is to be construed to diminish the audit powers of the commission; provided, however, that such an audit shall not be conducted for a local exchange telephone company electing price regulation after June 1, 2009.
  11. Incumbent local exchange telephone companies subject to price regulation shall maintain their commitment to the FYI Tennessee master plan to the completion of the funded requirements with any alterations to the plan to be approved by the commission.
    1. Any nonincumbent certificated provider of local exchange telephone or intrastate long distance telephone service or any incumbent certificated provider of local exchange or intrastate long distance telephone service that has elected price regulation pursuant to subsections (a)–(k) may, in its sole discretion, elect to operate pursuant to market regulation, by filing notice of its intent to do so with the commission, which shall be effective immediately upon filing.
    2. For purposes of the rural exemption under 47 U.S.C. § 251 only, the election to operate pursuant to market regulation by a rural incumbent certificated provider of local exchange or intrastate long distance telephone service, as provided in this section, shall constitute an acknowledgement that a bona fide request for interconnection or services is not unduly economically burdensome, is technically feasible, will not present a risk of a significant adverse economic impact on users of telecommunications services generally, is consistent with 47 U.S.C. § 254 and is consistent with the public interest, convenience and necessity. This subdivision (l )(2) shall not apply to any telephone cooperative organized pursuant to § 65-29-102.
  12. Upon election of market regulation by a certificated provider, the provider shall be exempt from all commission jurisdiction, including, but not limited to, state-based regulation of retail pricing or retail operations, except as defined in subsection (n). Notwithstanding the limitations on commission jurisdiction over market-regulated companies under state law as set forth in this section, it is the express intent of the general assembly that the Tennessee public utility commission is authorized as a matter of state law to receive any jurisdiction delegated to it by the federal 1996 Telecommunications Act, in 47 U.S.C. § 214(e), or federal communications commission (FCC) orders or rules, including, without limitation, jurisdiction granted to hear complaints regarding anti-competitive practices, to set rates, terms and conditions for access to unbundled network elements and to arbitrate and enforce interconnection agreements. In addition, the commission shall continue to exercise its jurisdiction in its role as a dispute resolution forum to hear complaints between certificated carriers, including complaints to prohibit anti-competitive practices and to issue orders to resolve such complaints. The commission shall interpret and apply federal, not state, substantive law, which is hereby adopted so that such law is applicable to intrastate services for the purpose of adjudicating such state complaints. The commission shall adjudicate and enforce such claims in accordance with state procedural law and rules, including the enforcement and penalty provisions of § 65-4-120. No claim shall be brought to the Tennessee public utility commission as to which the FCC has exclusive jurisdiction. All complaints brought between carriers pursuant to this section shall be resolved by final order of the commission within one hundred eighty (180) days of the filing of the complaint.
  13. A certificated provider electing market regulation shall be subject to the jurisdiction of the commission only when:
    1. The commission is exercising its jurisdiction as described in subsection (m);
    2. The commission is acting with respect to enforcement or modification of any wholesale self effectuating enforcement mechanism plan in place as of January 1, 2009; provided, that such actions are consistent with federal telecommunications law;
    3. The commission is assessing and collecting inspection fees calculated in accordance with chapter 4, part 3 of this title and election of market regulation shall not alter the character of any intrastate revenue or remove any source of intrastate revenue formerly included within gross receipts and used for purposes of assessment of the fees;
    4. The commission is exercising jurisdiction over video service franchises pursuant to the Competitive Cable and Video Services Act, compiled in title 7, chapter 59, part 3;
    5. The commission is exercising jurisdiction respecting underground facilities damage prevention;
    6. The commission is exercising jurisdiction respecting the Tennessee relay center services or the Tennessee Devices Access Program pursuant to § 65-21-115;
    7. The commission is exercising jurisdiction respecting the small and minority-owned business participation plan pursuant to § 65-5-112;
    8. The commission is exercising jurisdiction respecting universal service funding pursuant to § 65-5-107;
    9. The commission is exercising jurisdiction respecting intrastate switched access service;
    10. The commission is exercising jurisdiction respecting extensions of facilities pursuant to § 65-4-114(2), except that no market-regulated carrier shall be subject to the regulatory commission jurisdiction in this subdivision (n)(10) in any wire center or geographic area the carrier designates by filing notice of such designation with the regulatory commission. Such notice shall be effective immediately upon filing and not subject to regulatory commission review;
    11. The commission is exercising jurisdiction pursuant to § 65-4-125; provided, however, that the commission shall exercise its jurisdiction under subsections (a) or (b) only in connection with a complaint.
  14. Incumbent local exchange providers that have elected market regulation shall not be entitled to the limitation on commission jurisdiction in subsection (n) with respect to those residential local exchange telecommunications services that are offered in exchanges with less than three thousand (3,000) access lines or, for carriers who serve more than one million (1,000,000) access lines in this state, those exchanges with access line counts and calling areas that would result in classification as rate group 1 or 2 under any such carrier's tariff in effect on January 1, 2009, and that are offered as single, individually priced services at a rate-group specific price rather than a state-wide or territory-wide price, except as follows:
    1. Upon petition by a market-regulated provider, the commission may order that such services shall be subject to the limitations on jurisdiction in subsection (n) by showing that each exchange has at least two (2) nonaffiliated telecommunications providers that offer service to customers in each zone rate area of each exchange;
    2. When counting the number of providers for the purpose of evaluating the competition standard in subdivision (o)(1), cable television providers that offer telephone and broadband services to residential customers may be included. Nonaffiliated providers of wireless service may be included in the count of providers but shall only count as one (1) provider regardless of the number of wireless providers. Nonaffiliated providers of voice over Internet protocol service shall not be counted for the purpose of evaluating the competitive exemption for residential service, unless the carrier seeking exemption offers a data service capable of supporting voice over Internet protocol service and does not require the purchase of voice telephony products to buy the data service. At least one (1) provider must be facilities-based and currently serving residential customers;
    3. When the petitioning party shows facts satisfying the competition standard set forth in subdivision (o)(1), the petitioner shall be entitled to a rebuttable presumption that the competition standard is satisfied;
    4. The petition shall be subject to an accelerated schedule. The commission must issue its decision on the petition, including its reasons, within ninety (90) days of the filing of the petition;
    5. Unregulated providers of service shall not be required to participate in the commission's docket considering the petition, but, to the extent such competitors intervene, they shall be required to provide discovery responses regarding the activities of the unregulated provider in such rate groups or exchanges. To the extent the petitioner seeks, but is unable to obtain discovery response from intermodal or unregulated providers regarding the competition present in such rate groups or exchanges, the petitioner shall be entitled to a rebuttable presumption that the unregulated provider is offering service in the area that is the subject of the petition;
    6. Whether or not such a petition is filed or granted, the limitations on commission jurisdiction set forth in subsection (n) shall automatically become applicable to all services of a market-regulated provider as of January 1, 2015; and
    7. The petition provided for in this subsection (o) shall be filed no earlier than one (1) year following May 21, 2009.
  15. Notwithstanding this section, providers that elect market regulation shall remain subject to the Tennessee Consumer Protection Act, compiled in title 47, chapter 18.
  16. Each year the commission shall prepare and submit to the general assembly a report describing the competitive nature of the communications market in Tennessee.
    1. The report shall, at a minimum, contain the following information:
      1. The number of telecommunications providers, including the technology used to provide service;
      2. The number of providers by county serving residential subscribers;
      3. The number of providers by county serving business subscribers; and
      4. The number of customers by customer type.
    2. In preparing the report, the commission shall rely on information filed with the commission or available as public information. The commission shall invite all providers of telecommunications services, including companies operating under market regulation, price cap regulation pursuant to this section, rate of return regulation, competitive carriers, wireless carriers, carriers offering voice over Internet protocol service, cable operators or other carriers known to provide such service in this state, to provide voluntary reports supplying information relating to the items in subdivision (q)(1) and relating to the services and products offered in this state and any other information the provider volunteers concerning future plans for deployment, new services, new technology or the scope of competition.
  17. In the event that a carrier has elected market regulation and later chooses to exit the business of providing local exchange telephone service in an exchange by selling all of its network in that exchange to another entity, then the following shall apply:
    1. If the purchasing entity is a certificated carrier of local exchange telephone service in this state, then no regulatory requirements shall apply, except that nothing in this section shall preclude the exercise of commission jurisdiction as set forth in subsection (m); and
    2. Any purchasing entity that applies for a certificate in connection with a sale of the type described in this section shall be subject to no greater standards than those applied by the commission for other entities seeking certification pursuant to § 65-4-201; and a commission order granting or denying the certificate, including appropriate findings of fact and conclusions of law, shall be entered no later than thirty (30) days from the filing of the application.
  18. Notwithstanding any other laws to the contrary, including, but not limited to, subsections (c) and (j), the earnings of an incumbent local exchange company operating under rate of return regulation shall not be considered in setting initial rates under this section for an incumbent local exchange company implementing a price regulation plan after January 1, 2009.
  19. Notwithstanding any law to the contrary, any certificated provider of local exchange telephone service subject to market regulation may, at its election, file a tariff with the commission governing the rates, terms and conditions of any of its services. Such filed tariff shall become effective upon filing and be deemed approved, unless rejected by the commission upon finding that the tariff violates applicable law within twenty-one (21) days of filing. The approval of a tariff under this subsection (t) shall constitute publication and notice to consumers of the provisions of the tariff, specifically those provisions governing carrier and consumer liability, for purposes of the filed rate doctrine. Unless rejected as provided herein, such tariffs shall constitute binding tariffs to the same extent as tariffs of other providers not subject to market regulation, including application of the filed rate doctrine, and shall be subject to the rules and regulations of the commission governing customer notices to the same extent as such rules apply to providers not subject to market regulation.
  20. The regulatory commission is prohibited from creating any new programs mandating discounts on retail telecommunications services or equipment without providing reimbursement to carriers. Any such unfunded discount program mandated by rules or orders of the regulatory commission or public service commission that was in place as of March 26, 2013, shall terminate sixty (60) days following March 26, 2013. Nothing in this subsection (u) shall apply to existing regulatory commission programs providing services for individuals who are deaf or hard of hearing.
  21. The regulatory commission shall not impose any requirements relating to issuance or maintenance of a certificate pursuant to § 65-4-201 on any market-regulated entity or on any affiliate of a market-regulated entity.

Acts 1995, ch. 408, § 10; T.C.A. § 65-5-209; Acts 2005, ch. 71, § 1; 2009, ch. 278, §§ 2, 3; 2010, ch. 973, § 1; 2013, ch. 61, §§ 2-4; 2017, ch. 94, § 52; 2019, ch. 329, § 2.

Compiler's Notes. Acts 2009, ch. 278, § 1 provided that this act shall be known and may be cited as the “Market Regulation Act of 2009”.

Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Acts 1995, ch. 408, referred to in (d), enacted §§ 65-5-20765-5-213 [now §§ 65-5-10765-5-113], and amended numerous sections in this title. See the Session Laws Disposition table in Volume 13.

Compiler's Notes. Acts 2019, ch. 329, § 8 provided that the use of the term “deaf or hard of hearing” in the act, which amended this section, shall not be construed to infringe on any right or protection, or absolve any entity of its obligations under the Americans with Disabilities Act (42 U.S.C. §  12101 et seq.), or any other relevant law.

Amendments. The 2017 amendment, throughout the section, substituted “Tennessee public utility commission” for “Tennessee regulatory authority”, substituted “commission” for “authority”, and substituted “commission's” for “authority's”; and substituted “a commission order” for “an authority order” in (r)(2).

The 2019 amendment substituted “individuals who are deaf or hard of hearing” for “the hearing impaired” at the end of the last sentence of (u).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2019, ch. 329, § 9. May 8, 2019.

Attorney General Opinions. After chapter 490 of the Public Acts of 2017 becomes effective, the Comptroller of the Treasury will continue to be responsible for reappraising the properties of modern market telecommunications providers.  The reappraisal schedule for the telecommunications providers’ properties will remain the same.  Their localized and nonoperating real property will be updated in each county during that county’s reappraisal year.  Their operating properties will be assessed and updated annually. OAG 17-34, 2017 Tenn. AG LEXIS 34 (7/26/2017).

NOTES TO DECISIONS

1. Power to correct reports.

Neither the public service commission (now authority) nor its staff has any power to adjust any of the figures contained in an incumbent local telephone company's Form PSC-3.01 report as long as the report is correct, based on required auditing principles and consistent with the authority's previously ordered rate making adjustments. Thus, the commission (now authority) exceeded its authority under this section by adjusting the figures to compensate for out of period items, abnormal or unusual expenses, and known charges. BellSouth Telcoms. v. Greer, 972 S.W.2d 663, 1997 Tenn. App. LEXIS 668 (Tenn. Ct. App. 1997), rehearing denied, Bellsouth Telcoms. v. Greer, 972 S.W.2d 663, 1997 Tenn. App. LEXIS 816 (Tenn. Ct. App. 1997).

65-5-110. Commission jurisdiction.

  1. In addition to any other jurisdiction conferred, the commission shall have the original jurisdiction to investigate, hear and enter appropriate orders to resolve all contested issues of fact or law arising as a result of the application of Acts 1995, ch. 408.
  2. The consumer advocate shall retain all powers with respect to Acts 1995, ch. 408 as is provided in § 65-4-118, or any future legislation.
  3. Nothing in Acts 1995, ch. 408 shall be construed as removing the powers of the former commission pursuant to § 65-5-102.
  4. Nothing in Acts 1995, ch. 408 shall affect the authority and duty of the former commission to complete any investigation pending as of June 6, 1995.
  5. Nothing in Acts 1995, ch. 408 shall be construed to affect the assessment for ad valorem taxation of property used to provide telecommunications services, and to that end it is declared that the fifty-five percent (55%) level of assessments shall remain applicable to property used in whole or in part to provide telecommunications services other than cellular telephone services, radio common carrier services, or long distance telephone services.

Acts 1995, ch. 408, §§ 11-14; T.C.A. § 65-5-210; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Acts 1995, ch. 408, referred to in this section, enacted §§ 65-5-20765-5-213 [now §§ 65-5-10765-5-113], and amended numerous sections in this title. See the Session Laws Disposition Table in Volume 13.

Amendments. The 2017 amendment substituted “the commission” for “the authority” in (a).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-111. Evaluation — Reports by commission.

The general assembly shall evaluate the implementation of Acts 1995, ch. 408, every two (2) years for not less than the next six (6) years by requiring the submission of a report prepared by the commission consisting of the following information:

  1. The compliance of market participants with Acts 1995, ch. 408;
  2. The status of universal service in Tennessee;
  3. The availability of service capabilities and service offerings, subdivided by facilities-based and non-facilities-based, for each telecommunications services provider;
  4. The number of customers, access lines served, and revenues, subdivided by residential and business, for each telecommunications services provider;
  5. The impact of federal telecommunications initiatives;
  6. The degree of technological change in the marketplace;
  7. The technical compatibility between providers;
  8. The service performance of providers; and
  9. Any other information the commission considers necessary for proper oversight and evaluation.

Acts 1995, ch. 408, § 15; T.C.A. § 65-5-211; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996.

Acts 1995, ch. 408, referred to in this section, enacted §§ 65-5-20765-5-213 [now §§ 65-5-10765-5-113], and amended numerous sections in this title. See the Session Laws Disposition Table in Volume 13.

Amendments. The 2017 amendment substituted “the commission” for “the authority” in the introductory language and in (9).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-112. Small and minority-owned telecommunications business participation plan.

Each telecommunications service provider shall file with the commission a small and minority-owned telecommunications business participation plan within sixty (60) days of June 6, 1995. Competing telecommunications service providers shall file such plan with the commission with their application for a certificate. Such plan shall contain such entity's plan for purchasing goods and services from small and minority telecommunications businesses and information on programs, if any, to provide technical assistance to such businesses. All providers shall update plans filed with the commission annually. For purposes of Acts 1995, ch. 408, “minority business” means a business which is solely owned, or at least fifty-one percent (51%) of the assets or outstanding stock of which is owned, by an individual who personally manages and controls the daily operations of such business, and who is impeded from normal entry into the economic mainstream because of race, religion, sex or national origin and such business has annual gross receipts of less than four million dollars ($4,000,000). For purposes of Acts 1995, ch. 408, “small business” means a business with annual gross receipts of less than four million dollars ($4,000,000).

Acts 1995, ch. 408, § 16; T.C.A. § 65-5-212; Acts 2017, ch. 94, § 52.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, l996.

Amendments. The 2017 amendment substituted “the commission” for “the authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-113. Assistance program for small and minority-owned businesses.

  1. The department of the treasury shall develop by rule an assistance program for small and minority-owned businesses, as defined in § 65-5-112, which may include loans and loan guarantees, technical assistance and services, and consulting and educational services to be funded solely from the fund established in subsection (b). The department shall administer the small and minority-owned business assistance program. It is the legislative intent that such program be designed with consideration of fair distribution of program assistance among the geographic areas of the state, the grand divisions, and small and minority-owned businesses. It is the legislative intent that the department use the assistance provided by this program to support the department's outreach to new, expanding, and existing businesses in Tennessee that do not have reasonable access to capital markets and traditional commercial lending facilities.
  2. There is established a general fund reserve to be allocated in accordance with the small and minority-owned business assistance program by this section which shall be known as the small and minority-owned business assistance program fund. Moneys from the fund may be expended in accordance with such program. Any moneys deposited in the fund shall remain in the reserve until expended for purposes consistent with such program and shall not revert to the general fund on any June 30. Any interest earned by deposits in the reserve shall not revert to the general fund on any June 30 but shall remain available for expenditure in subsequent fiscal years.
  3. It is within the state treasurer's discretion to accept new applications to participate in the small and minority-owned business assistance program after July 1, 2013. After July 1, 2013, the program shall administer all loans that are outstanding as of July 1, 2013, until the loans are matured or written-off. After July 1, 2013, and notwithstanding subsection (b), a portion of the small and minority-owned business program funds shall be transferred to the board of trustees of the college savings trust fund program to be utilized in an incentive plan or plans authorized in § 49-7-805(4), reserving such amounts that the state treasurer deems necessary for the administration of the small and minority-owned business program, as well as the administration and marketing of the incentive plan or plans. At least annually, the state treasurer shall evaluate the loan payments received by the small and minority-owned business assistance program and shall have the authority to transfer the funds from loan payments to the college savings trust fund program while reserving amounts for continued administration of the small and minority-owned business assistance program.

Acts 1995, ch. 408, § 17; 1998, ch. 707, § 1; T.C.A. § 65-5-213; Acts 2004, ch. 830, § 1; 2013, ch. 359, § 1; 2017, ch. 400, § 11.

Compiler's Notes. Acts 1995, ch. 305 § 23, which substituted “authority” for “commission” throughout this chapter, is deemed to amend this section, effective July 1, 1996. The section as set out above does not reflect the amendment by that act.

Acts 1998, ch. 707, § 2 provided that the amendment to (a) shall apply to any required contribution for 1998 and subsequent years of the program.

Amendments. The 2017 amendment substituted “college savings trust fund program” for “baccalaureate education system trust fund program” twice in (c).

Effective Dates. Acts 2017, ch. 400, § 20. July 1, 2017.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Part 2
Broadband Business Certainty Act of 2006

65-5-201. Short title.

This part shall be known and may be cited as the “Broadband Business Certainty Act of 2006.”

Acts 2006, ch. 681, § 2.

65-5-202. Part definitions — Treatment of telecommunications services to avoid federal law prohibited — Jurisdiction of regulatory commission maintained — Regulation of cable television not affected.

    1. As used in this part, “broadband services” means any service that consists of or includes a high-speed access capability to transmit at a rate that is not less than two hundred kilobits per second (200 Kbps), either in the upstream or downstream direction and either:
      1. Is used to provide access to the Internet; or
      2. Provides computer processing, information storage, information content or protocol conversion, including any service applications or information service provided over the high-speed access service.
    2. “Broadband services” does not include intrastate service that was tariffed with the Tennessee public utility commission and in effect as of May 15, 2006; furthermore, the intrastate service shall not be reclassified, bundled, detariffed, declared obsolete or otherwise recharacterized to avoid the imposition of inspection fees by the Tennessee public utility commission.
  1. Nothing in this part shall permit any carrier to treat services that constitute telecommunications services under federal law as nontelecommunications services for any purpose under state law.
  2. Nothing in this part shall alter or affect the jurisdiction of the Tennessee public utility commission to arbitrate or hear complaints related to anticompetitive pricing of regulated services or interconnection agreements between carriers pursuant to §§ 251 and 252 of the federal Telecommunications Act (47 U.S.C. §§ 251 and 252).
  3. Nothing in this part shall alter or affect any jurisdiction or authority of the Tennessee public utility commission to act in accordance with federal laws or regulations of the federal communications commission, including, but not limited to, jurisdiction granted to set rates, terms, and conditions for access to unbundled network elements and to arbitrate and enforce interconnection agreements.
  4. Nothing in this part shall alter or affect in any manner the regulation of cable television as established elsewhere in state law.

Acts 2006, ch. 681, § 3; 2017, ch. 94, § 52.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

65-5-203. Federal preemption.

In order to ensure that this state provides an attractive environment for investment in broadband technology by establishing certainty regarding the regulatory treatment of that technology, consistent with the decisions of the federal communications commission to preempt certain state actions that are not in accordance with the policies developed by the federal communications commission, the Tennessee public utility commission shall not exercise jurisdiction of any type over or relating to broadband services, regardless of the entity providing the service, except as provided in § 65-5-202(a).

Acts 2006, ch. 681, § 4; 2017, ch. 94, § 52.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority”.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Part 3
Uniform Access, Competition, and Consumer Fairness Act of 2011

65-5-301. Short title.

This part shall be known and may be cited as the “Uniform Access, Competition, and Consumer Fairness Act of 2011.”

Acts 2011, ch. 68, § 1.

Attorney General Opinions. Constitutionality of limitation of intrastate telephone switched access charges.  OAG 11-30, 2011 Tenn. AG LEXIS 32 (3/28/11).

65-5-302. Part definitions—Required parity for interstate and intrastate access rates and rate structures.

  1. For the purposes of this part:
    1. “Entity” means an entity that provides switched access service and is a public utility as defined in § 65-4-101 or a telephone cooperative governed by chapter 29 of this title;
    2. “Interstate switched access charges” means charges for switched access services for interstate toll telecommunications services;
    3. “Intrastate switched access charges” means charges for switched access services for intrastate toll telecommunications services; and
    4. “Switched access services” means the utilization of switching and related facilities for the origination or termination of toll telecommunications services of other service providers.
  2. Notwithstanding any law to the contrary and consistent with this part, any entity that provides switched access service shall be prohibited from imposing intrastate switched access charges that exceed the interstate switched access charges imposed by the entity, and shall utilize the same rate structure for the provision of intrastate switched access service that the entity uses for the provision of interstate switched access service; provided, however, that:
    1. Until such time as rules governing the funding of the Tennessee relay service have been promulgated and have taken effect pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and § 65-21-115, an entity may include in its intrastate switched access charges as a separate intrastate switched access rate element an additur established by the Tennessee public utility commission for the purpose of maintaining the Tennessee relay service consistent with § 65-21-115, such amount not to exceed the additur established as of April 12, 2011;
    2. Any entity that, as of April 12, 2011, is imposing intrastate switched access charges that, on an average per minute basis, are higher than the average per minute interstate switched access charges imposed by the entity, shall, no later than April 1, 2012:
      1. Establish an intrastate switched access rate structure that is the same as its interstate switched access rate structure; and
      2. Implement revised intrastate switched access charges to effectuate a reduction of at least twenty percent (20%) in the difference between the average per minute intrastate switched access rate in effect for the entity on April 12, 2011, and the average per minute interstate switched access rate in effect for the entity on April 12, 2011;
    3. Any entity effectuating a reduction in its intrastate switched access rates pursuant to subdivision (b)(2) shall, on or before April 1, 2013, implement revised intrastate switched access charges to effectuate a reduction of at least forty percent (40%) in the difference between the average per minute intrastate switched access rate in effect for the entity on April 12, 2011, and the average per minute interstate switched access rate in effect for the entity on April 12, 2011;
    4. Any entity effectuating a reduction in its intrastate switched access rates pursuant to subdivision (b)(2) shall, on or before April 1, 2014, implement revised intrastate switched access charges to effectuate a reduction of at least sixty percent (60%) in the difference between the average per minute intrastate switched access rate in effect for the entity on April 12, 2011, and the average per minute interstate switched access rate in effect for the entity on April 12, 2011;
    5. Any entity effectuating a reduction in its intrastate switched access rates pursuant to subdivision (b)(2) shall, on or before April 1, 2015, implement revised intrastate switched access charges to effectuate a reduction of at least eighty percent (80%) in the difference between the average per minute intrastate switched access rate in effect for the entity on April 12, 2011, and the average per minute interstate switched access rate in effect for the entity on April 12, 2011; and
    6. Any entity effectuating a reduction in its intrastate switched access rates pursuant to subdivision (b)(2) shall, on or before April 1, 2016, implement revised intrastate switched access charges that do not exceed the interstate switched access charges imposed by the entity.
  3. An entity that implements an increase in an intrastate switched access rate element between February 1, 2011, and April 1, 2012, and that is transitioning its intrastate access rates as provided in subdivisions (b)(2)-(6), shall reduce such intrastate switched access rate element to the rate in effect on January 31, 2011, no later than April 1, 2012, and shall effectuate the reductions required by subdivisions (b)(2)-(6) using the average per minute intrastate switched access rate in effect for the entity on January 31, 2011, instead of the average per minute intrastate switched access rate in effect for the entity on April 12, 2011.
  4. A competing telecommunications service provider, as defined in § 65-4-101, may provide by tariff that its intrastate switched access charges are the same as those of the incumbent local exchange telephone company, as defined in § 65-4-101, for whose service area the competing telecommunications service provider is offering intrastate switched access service, and be deemed thereby to comply with subsections (b) and (f), and the requirement in subsection (g) to set forth intrastate switched access rates and a rate structure in a tariff or price list.
  5. Notwithstanding any law of this state or requirements of the Tennessee public utility commission to the contrary, an entity that transitions its intrastate access rates as provided in subdivisions (b)(2)-(6), shall be entitled, but not required, to adjust its retail rates each year to recover any revenue losses resulting from its revision of intrastate switched access rates and rate structure. The Tennessee public utility commission may not review or regulate such retail rate adjustments.
  6. To the extent the interstate switched access rates or rate structure of an entity change consistent with applicable federal law, then the entity shall have thirty (30) days to implement the same changes for its provision of intrastate switched access services. Notwithstanding the implementation of any change authorized by this subsection (f), to the extent that an entity is implementing revisions to its intrastate switched access rates in accordance with subdivisions (b)(2)-(6), the entity shall continue to revise its rates in accordance with subdivisions (b)(2)-(6) and, on or before April 1, 2016, and thereafter, such entity shall have the same rates and rate structures for the provision of both intrastate and interstate switched access services.
  7. No later than April 1, 2012, any entity that is providing switched access service shall file and thereafter maintain a tariff or price list with the Tennessee public utility commission setting forth its intrastate switched access rates and rate structure.

Acts 2011, ch. 68, § 1; 2017, ch. 94, § 52.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” throughout the section.

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Attorney General Opinions. Constitutionality of limitation of intrastate telephone switched access charges.  OAG 11-30, 2011 Tenn. AG LEXIS 32 (3/28/11).

Chapter 6
Railroads — Powers — Construction and Maintenance

Part 1
General Provisions

65-6-101. Acquisition or construction of railroads — Acquisition and disposition of stocks or bonds.

All railroad companies of this state, and any other state or states, are empowered to build, lease or let, acquire by purchase, lease, or otherwise, and operate, hold, or dispose of any railroad or railroads in any state or states, or any parts or portions of any such railroad or railroads, and the distribution thereof, as may be determined by their stockholders, and to acquire by purchase or otherwise, and hold or dispose of any bonds or shares of the capital stock of any railroad company or companies in any state or states, and to endorse and guarantee the bonds of any railroad company or companies in any state or states, whose original charter of incorporation was granted by the state; provided, that the same should be approved by a vote of the holders of a majority of all of the outstanding shares entitled to vote thereon or upon receiving two thirds (2/3) of the votes which members present or represented at such meeting are entitled to cast, at a regular or called meeting of the stockholders of the company; and provided further, that ten (10) days' notice be given in a Memphis, Knoxville, Chattanooga and Nashville daily newspaper, of the time, place, and purpose of the meeting.

Acts 1881, ch. 9, § 2; 1891, ch. 61, § 1; Shan., § 1540; Acts 1921, ch. 71, § 1; Code 1932, § 2610; T.C.A. (orig. ed.), § 65-601; Acts 1984, ch. 739, §§ 1, 2.

Cross-References. Apportionment for excise tax purposes, § 67-4-2011.

Apportionment of capital for purposes of franchise tax, § 67-4-2111.

Assessment of property for tax purposes, title 67, ch. 5, part 13.

Grading of extension into state mines, § 41-22-104.

Leases of equipment and rolling stock may provide for conditional sales, § 65-10-111.

Levee or drainage district improvements, assessment for benefits, § 69-5-313.

Prohibition of gas storage tanks within two hundred feet of a railroad, § 68-101-105.

NOTES TO DECISIONS

1. Lease of Railroad Property.

A railroad corporation is authorized to lease its property and franchises only to corporations engaged in or carrying on, or authorized by its charter to carry on, the same general business. Briggs v. Clawson Bros., 8 Tenn. App. 251, — S.W.2d —, 1928 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1928).

2. Approval by Stockholders of Lease.

Under this section, the directors of a railroad corporation existing under the laws of this state have no power to conclude a lease of another line of railroad until it has been approved by the vote of three fourths, in amount, of the capital stock of their company represented and voting at a regular or called meeting of the stockholders. Rogers v. Nashville, C. & St. L. R. Co., 91 F. 299, 1898 U.S. App. LEXIS 1849 (6th Cir. Tenn. 1898).

Section 65-6-130 merely enlarges the powers of railroad companies, and does not supersede or impliedly repeal the provisions of existing general laws requiring the consent of stockholders to such purchase or lease, and especially does not affect such provision of this section. Rogers v. Nashville, C. & St. L. R. Co., 91 F. 299, 1898 U.S. App. LEXIS 1849 (6th Cir. Tenn. 1898).

3. Suit by Stockholder.

In a suit by a stockholder of a lessee railroad corporation to set aside a contract by which his corporation leased a railroad line, the plaintiff cannot question the power of the lessor corporation to acquire the ownership of the leased line by purchase, where the purchase had been executed, and the title vested, before the making of the lease, for, after that time, the question of ultra vires can only be raised by the state. Rogers v. Nashville, C. & St. L. R. Co., 91 F. 299, 1898 U.S. App. LEXIS 1849 (6th Cir. Tenn. 1898).

Collateral References.

Constitutionality, construction, and effect of statutory or charter provisions relating to sale of all or substantially all, of assets of corporation or division or distribution of proceeds. 79 A.L.R. 624.

Constitutionality of statutes providing for consolidation or merger of public utility corporations. 66 A.L.R. 1568.

Dissenting stockholders, construction and effect of provision for payment of, in statutes relating to merger or consolidation of corporations. 87 A.L.R. 597, 162 A.L.R. 1237, 174 A.L.R. 960.

Judicial power in respect to consolidation or merger of railroads. 51 A.L.R. 1249.

Liability of consignee for personal injury or death of one other than his employee in connection with carrier unloading operations. 86 A.L.R.2d 1399.

Liability of railroad company for torts of its licensee involving breach of positive duties correlative to railroad franchise. 28 A.L.R. 175.

Valuation of stock of dissenting stockholders in case of consolidation or merger of corporation, sale of its assets, or the like, 48 A.L.R.3d 430.

65-6-102. Issuance of bonds and stock.

Railroad companies existing under the laws of this state, or of this state and any other state or states, are empowered to issue bonds, and secure the payment thereof by mortgage upon their franchises and property in any state or states, or upon any part of such franchises and property, or to issue income or debenture bonds, and such guaranteed, preferred, and common stock as may be determined upon by the stockholders; provided, the same be approved by the votes of the holders of three-fourths (¾) in amount of the entire stock of the company, at a regular or called meeting of the stockholders of the company, and that ten (10) days' notice be given in a Memphis, Knoxville, and Nashville daily newspaper, of the time, place, and purpose of the meeting.

Acts 1881, ch. 9,  § 1; Shan., § 1542; impl. am. Acts 1921, ch. 71, § 1; mod. Code 1932, § 2611; T.C.A. (orig. ed.), § 65-602.

Cross-References. Bonds for purchase of other railroads, § 65-8-102.

Judgments for timbers, work, or damages to person or property, priority over mortgage, § 65-10-112.

Mortgage foreclosure, sale under decree, rights of purchasers, § 65-8-106.

NOTES TO DECISIONS

1. Construction.

The Act of March 15, 1881 confers power to mortgage in broad terms and covers all railroad companies existing under the laws of this or any other state and to all companies that might thereafter be created, but it does not undertake to repeal any former legislation. Frazier v. East T., V. & G. R. Co., 88 Tenn. 138, 12 S.W. 537, 1889 Tenn. LEXIS 38 (1889), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891).

2. Mortgage by Railroad.

The provision requiring notice to be given of a meeting of the stockholders is for the protection of the stockholders, and, until some stockholder objects to the validity of the mortgage no other person can object on that ground. Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895).

Collateral References.

Instrument issued by corporation as certificate of preferred stock or as evidence of indebtedness. 123 A.L.R. 856.

Mortgage or lien, assumption of, by corporation as ultra vires. 91 A.L.R. 177.

Mortgage securing bonds, lien of, as affected by exchange of bonds for those of reorganized or new corporation. 81 A.L.R. 130.

Power to create preferred stock as against existing preferred stock. 44 A.L.R. 72.

Predecessor, corporation's liability on bonds of. 15 A.L.R. 1112, 149 A.L.R. 787.

Railroad bonds, right of holder of, to moneys due railroad from United States during federal control. 19 A.L.R. 679, 52 A.L.R. 296.

65-6-103. Subscription for or purchase of stocks and bonds of other companies — Contracts for construction or lease.

It is lawful for any railroad company created by and existing under the laws of this state, and for any lessees of a railroad of such company, from time to time, to subscribe for or purchase the stock and bonds, or either, of any other railroad company or companies chartered by or of which the road or roads are authorized to extend into this state, when their roads shall be directly, or by means of intervening railroads, connected with each other; and to make contract with such company or companies for the construction, maintenance, repairs, or equipments, as well as lease of such other railroad or railroads, upon such terms as may be agreed upon by the companies owning the same, or by the companies and such lessees.

Acts 1869-1870 Private, ch. 49, § 4; Shan., § 1520; Code 1932, § 2595; T.C.A. (orig. ed.), § 65-603.

Cross-References. Authorization by stockholders, § 65-6-101.

Construction or leasing authorized, § 65-6-101.

NOTES TO DECISIONS

1. Lease of Railroad Property.

A corporation is authorized to lease its property and franchises only to corporations engaged in, or carrying on, or authorized by charter to carry on the same general business as is authorized by the charter of the lessor corporation. Briggs v. Clawson Bros., 8 Tenn. App. 251, — S.W.2d —, 1928 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1928).

2. Authority to Purchase Stock.

While power is given to the railroads of this state, under certain circumstances stated, to buy stock in certain other described railroads, still the rule is, in the absence of express power conferred by the charter of a corporation, or otherwise by legislation, or by necessary implication, it has no power to buy or subscribe for shares of stock in another corporation. Clark v. Memphis S. R. Co., 123 Tenn. 232, 130 S.W. 751, 1910 Tenn. LEXIS 1 (1910).

Collateral References.

Covenant of lessee to pay taxes, what taxes are within contemplation of. 9 A.L.R. 1566, 30 A.L.R. 991, 45 A.L.R. 756, 124 A.L.R. 1020, 140 A.L.R. 517.

Debts of predecessor, liability of lessee of railroad for. 15 A.L.R. 1165, 149 A.L.R. 787.

Income tax paid by lessee as taxable income of lessor. 91 A.L.R. 1272.

65-6-104. Limitation of time removed from original franchise.

Any railroad corporation or other body heretofore granted the right or power to build and maintain a railroad in this state, for a limited number of years, and which now owns a railroad in this state, built and maintained pursuant to such grant or power, has all the rights and privileges as are conferred by any general statutes of this state upon railroad corporations, and may exercise the same without regard to and despite any limitations of years contained in any such original franchise or grant.

Acts 1929, ch. 52, § 1; mod. Code 1932, § 4013; T.C.A. (orig. ed.), § 65-604.

Collateral References.

Perpetual franchise. 2 A.L.R. 1105.

Power of corporation after expiration or forfeiture of its charter. 47 A.L.R. 1288, 97 A.L.R. 477.

65-6-105. Adoption of electricity for motive power.

Any company authorized to operate a railroad by steam is empowered to adopt electricity as its motive power, whether such railroad be wholly or only partly in the state.

Acts 1903, ch. 59, § 1; Shan., § 2425a1; Code 1932, § 4010; T.C.A. (orig. ed.), § 65-605.

65-6-106. Entry upon private lands for certain purposes.

The company, by its officers and agents, may enter upon the lands of private persons for the purpose of making surveys, estimates, and location of route.

Acts 1875, ch. 142, § 6; Shan., § 2425; Code 1932, § 4009; T.C.A. (orig. ed.), § 65-606.

65-6-107. Preference in location of line.

No railroad company shall have the right, by surveying or locating its line of railroad, to defer building its line of railroad to the exclusion of other companies that may sooner and more certainly build upon such line of route, but the company which, in good faith, first actually constructs its road over such route, shall have preference in the location of the route.

Acts 1899, ch. 399, § 1; Shan., § 1880a2; Code 1932, § 3147; T.C.A. (orig. ed.), § 65-607.

65-6-108. Location of first of two lines.

If, in determining any controversy over routes, it shall appear to the court that the second company, in good faith, intends to and probably will construct its road, the first line constructed shall be located, if practicable, so as not to make it unreasonably expensive to construct the other one.

Acts 1899, ch. 399, § 1; Shan., § 1880a3; Code 1932, § 3148; T.C.A. (orig. ed.), § 65-608.

65-6-109. Right-of-way authorized.

The corporation shall have the right, in pursuance of the general law authorizing the condemnation of private property for works of internal improvement, to appropriate as an easement a right-of-way, not exceeding two hundred feet (200'), over the land of any person through which the line of the track may be located.

Acts 1875, ch. 142, § 6; Shan., § 2413; Code 1932, § 4003; T.C.A. (orig. ed.), § 65-609.

Cross-References. Ditches and drains across, location, § 69-6-117.

Taking of land for internal improvements, § 29-16-101.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Eminent Domain, §§ 7, 71; 21 Tenn. Juris., Railroads, § 14.

NOTES TO DECISIONS

1. Condemnation.

2. —Right of Way.

Whether a railroad company acquired its right of way by condemnation or warranty deed, conveying the fee is no ground for distinction in determining whether a prescriptive way can be acquired over such right of way, for, regardless of the mode of acquisition, a railroad company, under this section, holds property only for railroad purposes. Cincinnati, N. O. & T. P. R. Co. v. Sharp, 141 Tenn. 146, 207 S.W. 728, 1918 Tenn. LEXIS 76 (1918).

A prescriptive way over such right of way cannot be acquired, even where the right of way is in possession of the company as lessee. Cincinnati, N. O. & T. P. R. Co. v. Sharp, 141 Tenn. 146, 207 S.W. 728, 1918 Tenn. LEXIS 76 (1918).

Railroads are entitled to right of way not exceeding 200 feet in width, and it is not necessary for it to offer its charter to prove such right. Southern R. Co. v. Moore, 7 Tenn. App. 319, — S.W.2d —, 1928 Tenn. App. LEXIS 46 (Tenn. Ct. App. 1928).

Acquisition and holding of lands in fee by railroad for necessary purposes is authorized by statute. Nashville, C. & S. L. R. Co. v. Bell, 162 Tenn. 661, 39 S.W.2d 1026, 1931 Tenn. LEXIS 84 (1931).

This section merely gives railroad power to condemn not exceeding 200 feet, and in action by landowner for land taken, where railroad claimed land under deed it was not error to base land taken by railroad only on that indicated in deed. Southern R. Co. v. Griffitts, 42 Tenn. App. 494, 304 S.W.2d 508, 1957 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1957).

3. —Location.

Where no exact and definite line between two designated points or terminal is fixed in a railroad charter, discretion as to the location of the line is vested in the corporation, provided there is no substantial departure or deviation from the course and direction indicated by the charter. Tennessee C. R. Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112, 1902 Tenn. LEXIS 97 (1903); Collier v. Union R. Co., 113 Tenn. 96, 83 S.W. 155, 1904 Tenn. LEXIS 9 (1904); Memphis & S. L. R. Co. v. Union R. Co., 116 Tenn. 500, 95 S.W. 1019, 1906 Tenn. LEXIS 11 (1906).

The line may be located by the president upon the suggestion and under the advice of the general manager and engineers, and need not be located by the directors, nor need the location be formally approved by them. Tennessee C. R. Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112, 1902 Tenn. LEXIS 97 (1903).

The courts cannot control the discretion of the railroad company as to location of its line; and the landowner cannot defeat condemnation by showing that some other route would be more practicable and feasible. Memphis & S. L. R. Co. v. Union R. Co., 116 Tenn. 500, 95 S.W. 1019, 1906 Tenn. LEXIS 11 (1906).

4. —Parallel Lines.

There is no legislation which prohibits a railroad company from building a railroad or causing one to be built parallel to its own line. The object of legislation in regard to parallel and competing lines is to prevent the consolidation or acquisition of one railroad by a parallel and competing railroad. Memphis & S. L. R. Co. v. Union R. Co., 116 Tenn. 500, 95 S.W. 1019, 1906 Tenn. LEXIS 11 (1906). (However, there are provisions in some of the legislative charters of railroads prohibiting any other railroads to be built running laterally within 20 miles of the route and line adopted by another railroad under its charter, as was done in the charter of the Nashville and Chattanooga Railroad Company, as appears from Acts 1845-1846, ch. 1, § 13).

The question cannot be collaterally raised whether such proposed railroad is controlled by another existing railroad, so as to render the construction of the proposed railroad illegal, because the two roads will be parallel and competing. Memphis & S. L. R. Co. v. Union R. Co., 116 Tenn. 500, 95 S.W. 1019, 1906 Tenn. LEXIS 11 (1906).

5. —Nonuser.

A railroad corporation does not forfeit its charter rights by suspension of work and operations for a number of years, where the project is not abandoned, but the contemplated road is extended and built as soon as the funds are procured. Collier v. Union R. Co., 113 Tenn. 96, 83 S.W. 155, 1904 Tenn. LEXIS 9 (1904).

6. —Liabilities.

Railroad was not liable for rent where it went upon land and took possession without a conveyance or eminent domain proceedings, as landowner was restricted to recovery of damages against railroad. Hewgley v. Tennessee Cent. R.R., 3 Tenn. Civ. App. (3 Higgins) 184 (1912).

7. —Statutory Restrictions.

The right of condemnation is of statutory origin, and is limited to the provision of the statute; and where a railroad company has already condemned and approximated the maximum width allowed by statute, the company has exhausted its right of condemnation at such point, and is not entitled to condemn and take for any purpose, or on any account, private property lying outside the limits. White v. Railroad, 101 Tenn. 95, 45 S.W. 1073, 1898 Tenn. LEXIS 35 (1898).

8. —Function of Court.

The construction of a charter is a question for the court, and the preliminary questions involved in the right to condemn property must be determined by the court, and not left to a jury. Tennessee C. R. Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112, 1902 Tenn. LEXIS 97 (1903). But see Memphis & S. L. R. Co. v. Union R. Co., 116 Tenn. 500, 95 S.W. 1019, 1906 Tenn. LEXIS 11 (1906).

A court may take notice without proof that a railroad was originally chartered under Acts 1875, ch. 142, giving it power to acquire right of way not exceeding 200 feet. Anderson v. Peters, 22 Tenn. App. 563, 124 S.W.2d 717, 1938 Tenn. App. LEXIS 57 (Tenn. Ct. App. 1938).

9. Judicial Notice of Right of Way.

In action for death of child resulting from falling pile of railroad ties in which plaintiff's case was based on theory that defendant tie company was a trespasser in placing ties on land of coal company near railroad track court would take judicial notice of the width of the right-of-way which was acquired by the railroad and that therefore ties were placed on railroad rights of way by tie company as invitee. Anderson v. Peters, 22 Tenn. App. 563, 124 S.W.2d 717, 1938 Tenn. App. LEXIS 57 (Tenn. Ct. App. 1938).

Collateral References.

Abandonment for railroad purposes, who entitled to land upon, where railroad's original interest or title was less than fee simple absolute. 136 A.L.R. 296.

Bridge, notice of easement for, to purchaser of servient estate. 74 A.L.R. 1251.

Material or mineral within right of way, right of railroad company in respect of. 21 A.L.R. 1131.

Right of railroad company to use land in right of way for other than railroad purposes. 94 A.L.R. 522, 149 A.L.R. 378.

Title or interest acquired by railroad in exercise of eminent domain as fee or easement. 155 A.L.R. 381.

What constitutes abandonment of a railroad right of way. 95 A.L.R.2d 468.

65-6-110. Monopolizing right-of-way prohibited — Condemnation as in other cases.

No railroad company, whose railroad may be built in this state, has the right to hold, to the exclusion of other railroads to be built, by purchase or condemnation for its right-of-way, a wider strip of land than shall be necessary for its reasonable use in the transaction of its business; and any land owned, or right-of-way held, or acquired, by any such railroad company, which a jury of inquiry in condemnation proceedings shall find necessary for such reasonable use and business of the company, may be condemned for the use of other railroads thereafter to be built, in like manner as other private property.

Acts 1899, ch. 399, § 1; Shan., § 1880a1; mod. Code 1932, § 3146; T.C.A. (orig. ed.), § 65-610.

65-6-111. Joint right-of-way or joint use of track.

  1. In case any railroad company has acquired or owns a right-of-way over which its road is not already built, through or along any narrow pass, cliff, or gorge, where it may be unreasonably expensive or impracticable to put down more than one (1) track or line of railroad, any other railroad company, in good faith, desiring to build its line of road through or along the same narrow pass, cliff, or gorge, shall have the right to condemn a joint use of the right-of-way through or along the same, and, if after any railroad to be constructed through or along the same shall already have been constructed, any other railroad so desiring to build through or along such narrow pass, gorge, or cliff shall have the right to condemn a joint use of so much of the track as may be necessary, in like manner as railroads have the right to cross each other.
  2. Reasonable compensation shall be paid to the railroad company owning such right-of-way, or to the one whose right-of-way, or right-of-way and track, may be so condemned for such joint use with the other road, for its property and improvements and injury to its business, if any, which compensation, together with such reasonable restrictions as the jury of inquiry may prescribe at the expense of the second road for safely using such joint track, shall be fixed by the jury as in other cases of assessment of damages in the condemnation of private property.

Acts 1899, ch. 399, § 2; Shan., §§ 1880a4, 1880a5; Code 1932, §§ 3149, 3150; T.C.A. (orig. ed.), §§ 65-611, 65-612.

65-6-112. Existing rights-of-way unaffected.

Nothing contained in § 65-6-107, § 65-6-108, § 65-6-110, or § 65-6-111, shall be construed to affect any rights railroad companies, whose roads are already constructed and being operated, may have in respect to rights-of-way over which railroads are already being operated, it being the intention of such sections not, in any manner, to add to or take from such rights as they may have in those rights-of-way, but to apply only to roads or extensions or branch roads to be built.

Acts 1899, ch. 399, § 2; Shan., § 1880a6; Code 1932, § 3151; T.C.A. (orig. ed.), § 65-613.

65-6-113. Right-of-way at state line.

When any railroad of another state shall intersect the line of the state of Tennessee, at a point within five (5) miles of any railroad in this state, such road of other states is granted the right-of-way from such point of intersection to any point on the line of road in this state; provided, that such point of connection between the roads shall not be more than five (5) miles distant from the state line, and the same shall be subject to all laws of the state in reference to the right-of-way.

Acts 1871, ch. 55, § 1; Shan., § 1488; Code 1932, § 2570; T.C.A. (orig. ed.), § 65-614.

NOTES TO DECISIONS

1. Right of Way by Foreign Railroad.

A foreign railroad corporation may acquire its right of way to the extent provided in this section, by purchase, gift, or condemnation, in the same manner and extent that a domestic railroad corporation may, and not otherwise. Where a railroad corporation has already condemned for its right of way, the maximum width allowed by statute, it cannot condemn any more land for such purpose. White v. Railroad, 101 Tenn. 95, 45 S.W. 1073, 1898 Tenn. LEXIS 35 (1898).

65-6-114. Rights of foreign companies.

  1. Any railroad corporation created by the laws of any other state shall be empowered to extend its railroad into this state a distance not exceeding five (5) miles from the point of its entrance into this state, for the purpose of reaching a terminal point, or a general or a union depot in, or in the vicinity of, any city, town, or village in this state.
  2. Such corporations may acquire the right-of-way for their railroads from the line of this state to their terminal points or depots in this state by purchase or by gift or by condemnation.
  3. Such corporations shall have the power to purchase, hold, use, and enjoy all real estate necessary for the erection and maintenance of their depots, shops, yards, sidetracks, turnouts, and switches, both along the route and at their terminal points in this state; provided, that they shall first apply for and receive a charter in this state.

Acts 1887, ch. 160, §§ 1-3; Shan., §§ 1874-1876; Code 1932, §§ 3139-3141; T.C.A. (orig. ed.), §§ 65-615 — 65-617.

NOTES TO DECISIONS

1. Requirement for Charter Construed.

A foreign railroad company is authorized to acquire a right of way, and to construct its road thereon, to the extent of the limit in subsections (b) and (c), without first securing a charter from the state, as required by subsection (c), because the proviso in this subsection should be construed as applying only to the subsection in which it is found. Chattanooga, R. & C. R. Co. v. Evans, 66 F. 809, 1895 U.S. App. LEXIS 2693 (6th Cir. Tenn. 1895).

65-6-115. Gauge of road.

Any railroad corporation, whose line is located wholly or partly in the state, may adopt such gauge or gauges as its authorities may choose, and may alter the same at pleasure.

Acts 1885, ch. 20, § 1; Shan., § 2414; Code 1932, § 4004; T.C.A. (orig. ed.), § 65-618.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 15.

65-6-116. Change of terminus before final location.

Any railroad company may, by resolution of its board of directors, change either terminus of its line of railroad at any time before the final location of the same. This resolution shall be certified by the president and secretary of the company, under its corporate seal, and filed and registered as an amendment of its charter.

Acts 1887, ch. 39, §§ 1, 2; Shan., § 2415; mod. Code 1932, § 4005; T.C.A. (orig. ed.), § 65-619.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 9.

NOTES TO DECISIONS

1. Constitutionality.

The constitutional prohibition against the enlargement or diminution of powers by special laws applies to laws for the benefit of particular corporations designated by name, and does not apply to a statute authorizing railroads to change their termini before the final location of their lines. Memphis & S. L. R. Co. v. Union R. Co., 116 Tenn. 500, 95 S.W. 1019, 1906 Tenn. LEXIS 11 (1906).

2. “Before Final Location” Construed.

The line of a railroad has not been finally located where the road has been constructed, from one terminus a considerable portion of the way towards, and within about three miles of, the other terminus, but where the remainder of the line has not been located in any way, so as to preclude the fixing of the other terminus at a point beyond the point of construction, and beyond the terminus originally fixed in the charter. Memphis & S. L. R. Co. v. Union R. Co., 116 Tenn. 500, 95 S.W. 1019, 1906 Tenn. LEXIS 11 (1906).

65-6-117. Power to relocate lines.

Any railroad company owning or operating a railroad or any part thereof in this state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to relocate or change its lines or tracks, to build second main or double tracks, relocate any part or parts of its lines for the purpose of reducing or taking out curves or reducing grades, and to build embankments for the purpose of avoiding trestles upon which the railroad may be constructed, or to widen cuts when necessary for proper construction; provided, that where there is a relocation of any part of a road and any industry located upon the original road, the railroad shall keep and maintain a spur or sidetrack to such industry; and where any landowner or the heir or devisee or successor in title by conveyance or otherwise of any landowner who donated the original right of way, or who parted with the easement upon or title to the same in any other manner than by voluntary sale for a full cash consideration, shall be injured by such relocation, the railroad company shall be liable therefor; provided, that under this section and §§ 65-6-118, 65-6-123, 65-6-129 and 65-6-131, no railroad shall be authorized to change the location of its line or lines within any incorporated towns, or cities, except by consent of the governing authorities of such incorporated towns or cities.

Acts 1907, ch. 464, § 1; Shan., § 1880a9; mod. Code 1932, § 3154; T.C.A. (orig. ed.), § 65-620.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 21.

NOTES TO DECISIONS

1. Additional Tracks on Right of Way.

A railroad which has acquired a right of way by grant or condemnation is entitled to build additional railroad tracks on the right of way without paying additional compensation. Magill v. N., C. & S. L. Railway, 2 Tenn. Civ. App. (2 Higgins) 656 (1912).

2. Limit on Tracks in Municipality.

This section does not authorize a railroad company, to the exclusion of municipal authorities, to build a branch track within the limits of a city to connect with the private tracks of a cotton plant company. Memphis v. St. Louis & S. F. R. Co., 183 F. 529, 1910 U.S. App. LEXIS 5149 (6th Cir. Tenn. 1910).

Collateral References.

Abandonment on relocation of railroad line, right to damages for. 23 A.L.R. 555.

Condition subsequent as to construction or maintenance of railroad, waiver of breach. 39 A.L.R.2d 1116.

Covenant to construct switch or siding as running with the land. 41 A.L.R. 1369, 102 A.L.R. 781, 118 A.L.R. 982.

Fraud by nonperformance of promise as to location or continuance of road. 51 A.L.R. 123, 68 A.L.R. 635, 91 A.L.R. 1295, 125 A.L.R. 879.

Packs, squares, or commons, construction of railroad over. 18 A.L.R. 1249, 63 A.L.R. 484, 144 A.L.R. 486.

Statute of frauds as affecting contract as to railroad switches, performance of which within a year is improbable or almost impossible. 129 A.L.R. 545.

65-6-118. Acquisition of real estate for relocation of lines.

For the purposes mentioned in § 65-6-117, authority is granted to such railroad companies to acquire by purchase, and to hold such real estate as may be necessary.

Acts 1907, ch. 464, § 2; Shan., § 1880a10; mod. Code 1932, § 3155; T.C.A. (orig. ed.), § 65-621.

65-6-119. Construction and maintenance of roadbeds.

Any railroad company owning or operating a railroad or any part thereof in this state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to fill its trestles and to make all creek changes necessary for the same; to construct channels and canals contiguous to its rights of way so as to prevent the unnecessary crossing of creeks and to make such other changes in the beds of creeks as may be necessary for the proper construction and maintenance of its roadbeds; provided, that where any property owner is damaged by such change in a creek, such landowners shall be entitled to just compensation for the same.

Acts 1911, ch. 55, § 1; Shan., § 1490a1; Code 1932, § 2576; T.C.A. (orig. ed.), § 65-622.

Cross-References. Acquisition of land for purposes of this section, § 65-6-128.

Drawbridges, maintenance across navigable watercourses, § 69-1-114.

Collateral References.

Application of statutes requiring railroads to provide for drainage or flow of waters to the obstruction of watercourses. 19 A.L.R.2d 967.

Grantor of railroad right of way or his privy, right of to recover damages for interference with surface water by construction of road. 19 A.L.R. 487.

Overflow, liability for, of railroad company diverting stream into new channel. 12 A.L.R. 187.

65-6-120. Construction of railroad on county highways.

It is unlawful for any corporation or person to construct or use an ordinary railroad for the transportation of freight and passengers upon any county road or county highway of this state, without the consent of the county legislative body of the county in which the road lies. Before it is lawful for the county legislative body to give such consent, the corporation desiring to construct such railroad shall procure and file with the county legislative body the written consent of the owners of the lands abutting upon such road or highway, aggregating in such abutting length at least one-half (½) of all the lands in value, such value to be the value of the abutting lands running back from such road two hundred feet (200') upon both sides of the road to be occupied by the railroad. Any ordinary railroad constructed upon such county road or highway, without the consent of the county legislative body first lawfully obtained, shall be considered a nuisance, and liable to be treated as such, both by the public authorities and by private persons. But when the consent of the county legislative body has been first lawfully obtained, such railroad may be lawfully constructed and operated upon such road or highway under such restrictions as to the manner of construction and mode of use as the county legislative body may see fit to impose in granting the license; provided, that railroads already constructed upon any road or highway of this state under a license of the county legislative body are declared to be lawfully constructed, and this section shall not be construed as requiring a new license from the county legislative body for such construction or operation under its provisions.

Acts 1889, ch. 226, § 1; Shan., § 1879; Code 1932, § 3144; impl. am. Acts 1978 ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 65-631.

Cross-References. Abatement of nuisances, title 29, ch. 3.

Attorney General Opinions. A county attorney may bring an action under the statute to abate a nuisance, OAG 01-166, 2001 Tenn. AG LEXIS 164 (11/15/01).

NOTES TO DECISIONS

1. Improper Use of Highway in Condemnation Proceeding.

In a condemnation suit by a railroad company for its right of way, the fact that the company is improperly occupying the public highway with its roadbed and tracks, without the consent of either the abutting owner or the county court is immaterial so far as the rights of the landowner whose property is sought to be condemned for such right of way are concerned. While a railroad company improperly occupying the public highway may be enjoined in a proper proceeding, such improper occupation is no ground of defense to a proceeding to condemn and appropriate other land for a right of way. Collier v. Union R. Co., 113 Tenn. 96, 83 S.W. 155, 1904 Tenn. LEXIS 9 (1904); Memphis & S. L. R. Co. v. Union R. Co., 116 Tenn. 500, 95 S.W. 1019, 1906 Tenn. LEXIS 11 (1906).

Collateral References.

Power to require railroads to permit use of tracks in street by other companies. 28 A.L.R. 969.

65-6-121. Compensation for damages from construction on county highway.

Section 65-6-120 shall not be construed so as to prevent the owners of land abutting upon such road from obtaining due compensation for damages arising from the construction of such railroad, such damages to be just compensation for all property taken, injured, or damaged by the building or operations of the railroad, such damages to be ascertained and paid before the right to appropriate the property to be occupied shall accrue, as provided by law.

Acts 1889, ch. 226, § 2; Shan., § 1880; Code 1932, § 3145; T.C.A. (orig. ed.), § 65-632.

65-6-122. Tracks not to obstruct travel on highways, streets, and alleys.

The line or track of the road shall be so constructed as not to interfere with the convenient travel of the public along the highways, county roads, streets, and alleys of cities, towns, and villages, and so as to allow vehicles conveniently and safely to pass over or under the line or track, and so as not to interrupt travel on foot or horseback, or in vehicles of any kind, in the proper use of the public road, street, or alley in the usual and proper mode for their convenience.

Acts 1875, ch. 142, § 6; Shan., § 2417; mod. Code 1932, § 4006; T.C.A. (orig. ed.), § 65-633.

Cross-References. Maintenance of highway crossings by railroads, §§ 65-11-10165-11-104.

Law Reviews.

Torts — Intervening Cause — Pedestrian Injured by Motorist on Narrow Railroad Bridge, 27 Tenn. L. Rev. 629 (1960).

NOTES TO DECISIONS

1. Jurisdiction.

Chancery court did not have jurisdiction to enjoin condemnation proceedings in circuit court instituted by railroad on the ground that railroad would not construct sufficient crossings under a new and additional location contemplated by the railroad since matter could be raised in the circuit court proceeding. Dixon v. Louisville & N. R. Co., 115 Tenn. 362, 89 S.W. 322, 1905 Tenn. LEXIS 72 (1905).

The chancery court has jurisdiction to compel a railroad company to make a grade crossing, so that the owner of land on both sides of the track may pass from one side to the other. Shipp v. Belt R. Co., 133 Tenn. 238, 180 S.W. 318, 1915 Tenn. LEXIS 89 (1915).

2. Denial of Crossing.

No crossing will be ordered at a point which would tend, directly and materially, to imperil the safety of transportation, for, where the rights of the individual come in conflict with those of the public, the rights of the individual must yield. Shipp v. Belt R. Co., 133 Tenn. 238, 180 S.W. 318, 1915 Tenn. LEXIS 89 (1915).

A crossing will not be ordered constructed at a point where the cost of construction and maintenance will be out of all proportion to the benefits arising to the landowner. Shipp v. Belt R. Co., 133 Tenn. 238, 180 S.W. 318, 1915 Tenn. LEXIS 89 (1915).

Where the landowner conveyed to the railroad company a right of way through his land, and the company constructed and operated its line upon the right of way, and the landowner thereafter conveyed an additional strip on both sides of the track, of a width in excess of that which the company could condemn, which was used for right of way for switch tracks, such landowner was thereby estopped to compel the railroad company to construct a crossing, where no provision therefor was made in his conveyance. Shipp v. Belt R. Co., 133 Tenn. 238, 180 S.W. 318, 1915 Tenn. LEXIS 89 (1915).

3. Liability of Railroad.

The statute does not impose upon railroad companies any duty higher than ordinary care in keeping crossings in reasonably safe condition for public travel. They are not insurers against accidents. Louisville & N. R. Co. v. Evins, 13 Tenn. App. 57, — S.W.2d —, 1930 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1930).

Where a company owned land on each side of a cut over which there was a bridge, the same duty to protect the cut by a fence or guard rail did not apply along its lands as applied to the bridge and its approach. Louisville & N. R. Co. v. Evins, 13 Tenn. App. 57, — S.W.2d —, 1930 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1930).

65-6-123. Condemnation of property to provide water for trains.

Any railroad corporation owning or operating a railroad or any part thereof in this state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to condemn property for a site for a reservoir or tank; also, the use of the water from any running stream, and also a way along which to lay pipeline or lines to convey water to its reservoir or tanks, whenever the same or any of them may be needed for the purpose of such railroad. The powers conferred in this section shall be exercised only for the erecting and maintaining of tanks and reservoirs for the purpose of operating trains. This section does not apply to springs or private ponds.

Acts 1907, ch. 254, § 1; Shan., § 1880a8; mod. Code 1932, § 3153; T.C.A. (orig. ed.), § 65-634.

NOTES TO DECISIONS

1. Constitutionality.

This statute is not violative of the state Constitution (Tenn. Const., art. XI, § 8), or of the federal Constitution (U.S. Const., amend. 14, § 1), prohibiting class legislation, although it does not confer the same right upon new railroad companies until they own or operate a railroad. Lea v. Louisville & N. R. Co., 135 Tenn. 560, 188 S.W. 215, 1915 Tenn. LEXIS 195 (1915).

2. Appropriation Without Condemnation.

Where, before the landowner filed his bill of injunction, the railroad company had fixed a permanent location for its pipeline along the margin of a turnpike on which the landowner's property abutted, the possession of the margin so fixed as the location of the pipeline had been taken by the laying down of heavy iron pipes thereon intended to be laid in place permanently, complainant's fee in the property was taken, so as to authorize suit under §§ 29-16-123 and 29-16-124. Lea v. Louisville & N. R. Co., 135 Tenn. 560, 188 S.W. 215, 1915 Tenn. LEXIS 195 (1915).

Where the defendant railroad company had already taken possession, complainant could not enjoin the completion of the work, although no condemnation proceeding had been commenced, and complainant's remedy was not in equity, but at law. Lea v. Louisville & N. R. Co., 135 Tenn. 560, 188 S.W. 215, 1915 Tenn. LEXIS 195 (1915).

3. Condemnation.

Under this statute a way for a pipeline may be condemned to convey water from the reservoir, formed by damming up a running stream, to the railroad's tanks. Lea v. Louisville & N. R. Co., 135 Tenn. 560, 188 S.W. 215, 1915 Tenn. LEXIS 195 (1915).

The landowner cannot defeat the condemnation proceeding upon the ground that the condemning railroad company intends to make an improper use of some of the water. Lea v. Louisville & N. R. Co., 135 Tenn. 560, 188 S.W. 215, 1915 Tenn. LEXIS 195 (1915).

4. Misuse.

Under this statute, if, after the power is exercised and the condemnation is made, the condemner misuses the water, the state may complain of the abuse, but not the owners whose lands were so condemned. Lea v. Louisville & N. R. Co., 135 Tenn. 560, 188 S.W. 215, 1915 Tenn. LEXIS 195 (1915).

5. Additional Burden on Fee.

Water pipes laid under a county highway, or by its side, with the county's permission, create an additional servitude upon the fee estate of the abutting owner whose line extends over and beyond the pipeline, and such abutting owner may recover compensation. Lea v. Louisville & N. R. Co., 135 Tenn. 560, 188 S.W. 215, 1915 Tenn. LEXIS 195 (1915).

65-6-124. Damage to forest growth in construction of railroads.

For all damages caused to forest growth by any person or construction company employed in the construction of any railroad to be built in this state, the person shall be primarily liable for the damage arising from such construction.

Acts 1907, ch. 397, § 13; Shan., § 2883a75b15 (p. 7226); Code 1932, § 5243; T.C.A. (orig. ed.), § 65-635.

Cross-References. Criminal penalties for fires to woodlands, §§ 39-14-303, 39-14-304.

65-6-125. Right to build branch roads.

Any railway corporation chartered under the general laws of the state, which may desire to build a branch road or branch roads from its main stem, shall have the right to do so by amendment of its charter.

Acts 1889, ch. 158, § 1; Shan., § 2426; mod. Code 1932, § 4011; T.C.A. (orig. ed.), § 65-636.

Cross-References. Acquisition of branch lines or extensions, § 65-6-130.

Extension of lines and facilities, § 65-6-127.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 9.

65-6-126. Branch lines for industrial purposes.

Any railroad company operating a railroad, or any part of same, in this state, shall have power to build or acquire lateral or branch lines of railroad, not to exceed fifteen (15) miles in length, for any one (1) of such lateral or branch roads, extending from its main stem in the state to any mine or quarry, or into any mineral section of country tributary to such main stem, or to any mill, factory, or to the bank of any navigable stream, for the purpose of developing the resources of the country without any amendment to the charter of the railroad. Such railroads shall have power to condemn private property for use in the construction and operation of such lateral or branch roads; provided, that private property shall not be taken therefor, against the owner's will, without condemnation thereof, as provided by law in other cases, and such roads shall be, as common carriers, subject to the same duties and restrictions as the main lines with which they connect.

Acts 1895, ch. 152, § 1; 1899, ch. 259, § 1; 1903, ch. 210, § 1; Shan., §§ 1489, 1872a1; mod. Code 1932, §§ 2571, 3137; modified; T.C.A. (orig. ed.), § 65-637.

Cross-References. Acquisition of branch lines or extensions, § 65-6-130.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Eminent Domain, § 17.

NOTES TO DECISIONS

1. Factories.

Where the property not taken is available as manufacturing sites, the right of other roads to cross the track of the condemning railroad to get to it, becomes material and the jury should be properly instructed on that question. Union R. Co. v. Raine, 114 Tenn. 569, 86 S.W. 857, 1905 Tenn. LEXIS 27 (1905).

A cotton compress is not a manufacturing plant within the meaning of this section. Memphis v. St. Louis & S. F. R. Co., 183 F. 529, 1910 U.S. App. LEXIS 5149 (6th Cir. Tenn. 1910) (illustrative cases given of what are and what are not manufacturing plants).

2. Bank of Stream.

It was only intended by this section to authorize a railroad to extend a lateral road to the bank of a navigable stream when it proposes to extend its track direct to the bank of the river for the purpose of forming a connection with river transportation and serving as a common carrier for the transportation of traffic to and from the river. Memphis v. St. Louis & S. F. R. Co., 183 F. 529, 1910 U.S. App. LEXIS 5149 (6th Cir. Tenn. 1910).

This section does not authorize the construction of a lateral road which falls short more than a quarter of a mile of reaching the river bank, and when the railroad company does not intend to extend its track to the river, but merely proposes to handle for the person one particular kind of freight, namely, cotton, to and from a private plant located some 500 feet from the river bank. Memphis v. St. Louis & S. F. R. Co., 183 F. 529, 1910 U.S. App. LEXIS 5149 (6th Cir. Tenn. 1910).

65-6-127. Power to build or extend lines and facilities.

Any railroad company owning or operating any railroad or any part thereof in the state, whether chartered under the laws of this state or under the laws of any other state or states, is empowered to build cut-off lines, branch lines, and other lines for the purpose of the better and more expeditious handling of the public business in the transportation of freight and passengers, and to construct, build, or extend any main line, branch line, or other line into, and to serve, other and different territory, and to build second main or double tracks, turnouts, switches, spur tracks, side-tracks, stations, depots, and terminal facilities.

Acts 1911, ch. 70, § 1; Shan., § 1489a1; Code 1932, § 2572; T.C.A. (orig. ed.), § 65-638.

Cross-References. Extension or lateral branch not exempt from taxation, § 65-6-131.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Eminent Domain, § 17.

65-6-128. Acquisition of land by purchase or condemnation.

For the purposes mentioned in §§ 65-6-119 and 65-6-127, power is granted to such railroad company to acquire by purchase and to hold such real estate as may be necessary or proper, and to acquire such real estate as may be necessary or proper for such purposes, by condemnation of private property for works of internal improvement as set forth in §§ 29-16-10429-16-124, 29-16-202 and 29-16-203.

Acts 1911, ch. 55, § 2; 1911, ch. 70, § 2; Shan., §§ 1489a2, 1490a2; Code 1932, §§ 2573, 2577; T.C.A. (orig. ed.), § 65-639; Acts 2014, ch. 927, § 12.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Eminent Domain, §§ 7, 17; 21 Tenn. Juris., Railroads, § 10.

NOTES TO DECISIONS

1. Construction.

The statute is very broad, conferring power on foreign corporations to acquire private property, to connect with important industries, by purchase or condemnation. Armstrong v. Illinois C. R. Co., 153 Tenn. 283, 282 S.W. 382, 1926 Tenn. LEXIS 2 (1926).

2. Amount of Land Taken.

The quantity of land to be taken is left, within reasonable limits, to the condemner, and may cover needs that are prospective within a reasonable time. Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 1929 Tenn. LEXIS 124 (1930).

Collateral References.

Deed to railroad company as conveying fee or easement. 6 A.L.R.3d 973.

Injunction against exercise of power of eminent domain. 93 A.L.R.2d 465.

65-6-129. Powers in addition to those existing under charters.

The powers conferred by §§ 65-6-11765-6-119, 65-6-127 and 65-6-128 are in addition to the powers which railroad companies have by virtue of their charters or by virtue of the general laws of the state.

Acts 1907, ch. 464, § 3; 1911, ch. 55, § 3; 1911, ch. 70, § 3; Shan., §§ 1489a3, 1490a3; 1880a11; Code 1932, §§ 2574, 2578, 3156; modified; T.C.A. (orig. ed.), § 65-640.

65-6-130. Acquisition of branches and extensions.

All railroad companies existing under the laws of this state, or of this state and any other state or states, whose charter of incorporation is granted by this state, are empowered to acquire the line or lines of any other railroad company, either in this state or any other state or states, which may connect with and form parts or branches or extensions of the line of such company chartered by this state, or by this state and any other state or states; and are empowered to so acquire such branches or extensions by purchase, lease, or otherwise, and pay for the same by the issue of their own capital and bonds, or by guaranteeing those issued by the company whose line may be so acquired, purchased, or leased; but nothing in this section shall be construed to authorize the acquisition in any way by any corporation or company of parallel or competing lines.

Acts 1891, ch. 125, § 1; Shan., § 1521; Code 1932, § 2596; T.C.A. (orig. ed.), § 65-641.

Cross-References. Amendment of charter to permit branch line construction, § 65-6-125.

Branch lines for industrial purposes, § 65-6-126.

Extension of lines and facilities, § 65-6-127.

65-6-131. Consolidation of competing or parallel lines unlawful — Liability for taxes.

Nothing in this chapter shall be construed to make it lawful for any railroad corporation to purchase or consolidate with any parallel or competing line of railway, whether constructed or in course of construction, or to exempt railroad companies from paying state, county, or municipal taxes upon such extensions, branches or new lines.

Acts 1889, ch. 158, § 3; 1895, ch. 152, § 2; 1899, ch. 259, § 2; 1899, ch. 399, § 2; 1907, ch. 464, § 4; 1911, ch. 55, § 4; Shan., §§ 1490, 1490a4, 1873, 1880a7, 1880a12, 2428; mod. Code 1932, §§ 2575, 2579, 3138, 3152, 3157, 4012; modified; T.C.A. (orig. ed.), § 65-642.

NOTES TO DECISIONS

1. Right of Way on Existing Railroad Tracks.

The right of way on the tracks of an existing private railroad owned by a railroad corporation cannot be condemned, and where the petitioner seeks such condemnation only, and shows that the right of way is not of sufficient width to build another railroad parallel with the railroad already there, the condemnation will be refused. Alfred Phosphate Co. v. Duck River Phosphate Co., 120 Tenn. 260, 113 S.W. 410, 1907 Tenn. LEXIS 47, 22 L.R.A. (n.s.) 701 (1907).

2. Transfer Tax.

A railroad corporation acquiring the property of another is liable for the tax on transfers of realty. State ex rel. Stewart v. Louisville & N. R. Co., 139 Tenn. 406, 201 S.W. 738, 1917 Tenn. LEXIS 117 (1917).

65-6-132. Trees to be cut down.

  1. Every company or person operating a railroad in this state shall cut down all trees standing on its lands which are six (6) or more inches in a diameter two feet (2') above the ground and of sufficient height to reach the roadbed if they should fall.
  2. A failure to comply with subsection (a) will render the company liable for all damages to person or property resulting therefrom; also to a penalty of one hundred dollars ($100), to be recovered on suit brought in the name of any citizen before any tribunal having jurisdiction, half of which shall go to the treasury of the county in which such provisions may have been disregarded, and the other half to the plaintiff.

Acts 1870-1871, ch. 78, §§ 1, 2; Shan., §§ 1584, 1585; mod. Code 1932, §§ 2648, 2649; T.C.A. (orig. ed.), §§ 65-643, 65-644.

NOTES TO DECISIONS

1. Applicability.

District court's decision to read T.C.A. § 65-6-132 to the jury in a wrongful death action, brought for the death of a motorist after he was struck by a train at a railroad crossing, did not constitute reversible error, because while it could not be said that T.C.A. § 65-6-132 clearly applied to protect against the type of harm at issue in the case, neither could it be clearly held otherwise. Even if the district court committed error, it was harmless given the considerable evidence upon which the jury could conclude that the railroad was liable for the motorist's death. Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 2004 FED App. 156P, 2004 U.S. App. LEXIS 10438 (6th Cir. Tenn. 2004), rehearing denied, Shanklin ex rel. Shanklin v. Norfolk S. Ry. Co., — F.3d —, 2004 U.S. App. LEXIS 16566 (6th Cir. Ky. July 29, 2004).

65-6-133. Railroad police officers.

  1. Any company or corporation owning or operating a railroad in this state may apply to the governor to commission such number of its agents, servants or employees as the company shall designate to act as police officers for the company.
  2. The governor, upon such application, shall appoint such persons as the company designates, or as many thereof as the governor deems proper to be such police officers, and shall give commissions to those appointed.
  3. Before entering into the performance of police duties, every police officer so appointed shall take and subscribe an oath of office, and enter into a surety bond in the sum of one thousand dollars ($1,000), payable to the state, conditioned for the faithful performance of such duties. Such oath of office and such bond, with a copy of the commission, shall be filed with the secretary of state.
  4. Each police officer shall have and exercise throughout every county in which the company for which such officer was appointed shall do business, operate, or own property, the power to make arrests for violation of law on the property of such company, and to arrest persons, whether on or off such company's property, violating any law on such company's property, under the same conditions under which deputy sheriffs or other peace officers may by law make arrests, and shall have authority to carry weapons for the reasonable purpose of their offices. The keepers of jails in any county or municipality wherein the violation occurs for which any such arrest is made shall receive all persons arrested by such police officer to be dealt with according to law, and persons so arrested shall be received by keepers of jails on the same basis and shall have the same status as prisoners arrested by any other police officer.
  5. Every police officer so appointed shall, when on duty, carry a badge or identification card identifying the officer as a member of the police department of such railroad company for or which such officer is appointed, and the officer shall exhibit such badge or identification card, on demand, and before making an arrest.
  6. The compensation for such police officers shall be paid by the company for which they are respectively appointed.
  7. When a company no longer requires the services of a police officer so appointed, it shall file a notice to that effect with the secretary of state. Thereupon, the powers of such police officer shall cease and terminate.
  8. Any person commissioned as a police officer pursuant to this section shall, prior to such commission, receive peace officer standards and training certification.

Acts 1969, ch. 111, §§ 1-7; T.C.A., §§ 65-648 — 65-654; Acts 2009, ch. 372, § 3.

Compiler's Notes. Acts 2009, ch. 372, § 4, provided that the act, which added §§ 38-8-104(f), 38-8-107(e), and 65-6-133(h), shall apply to any railroad police officer commissioned pursuant to § 65-6-133 on or after July 1, 2009.

Cross-References. Employment and training of police officers, title 38, ch. 8.

Public officers preventing commission of offenses, title 38, ch. 3.

65-6-134. Locomotive engineer's operator permit.

Every company, association, person or other entity which employs or permits any person to operate a railroad locomotive shall issue to such person an engineer's operator permit. Such permit shall include the engineer's name, address, description, date of birth and a certification that such person is qualified as a locomotive engineer.

Acts 1980, ch. 542, § 2; T.C.A., § 65-655.

Cross-References. Carrying license while operating railroad locomotive required, § 65-12-115.

Part 2
Clearance Requirements

65-6-201. Minimum clearance requirements.

  1. The minimum clearance requirements for all railroads operating in this state, in the construction or relocation subsequent to April 13, 1949, of tracks, tunnels, bridges, or structures adjacent to tracks, shall be as described in this part, except as otherwise provided.
  2. No railroad corporation shall operate any cars, trains, motors, engines, or other rolling equipment on its tracks, or tracks of others, except as provided in this part, on which overhead or side clearances, or clearances between tracks, are less than the minimum prescribed in this part, if such tracks, bridges, tunnels or structures adjacent to such track are constructed or relocated subsequent to April 13, 1949.

Acts 1949, ch. 178, § 1; C. Supp. 1950, § 2670.1; T.C.A. (orig. ed.), § 65-623.

NOTES TO DECISIONS

1. In General.

Where employer loading railroad car had contracted with railroad to hold railroad harmless for violation of this section and also for negligence on part of employer or its employees and suit for negligence causing death was brought against railroad, railroad, in third party action, could recover from employer under indemnity contract where it was shown that employer was negligent in permitting minor to operate railroad car and it was not necessary to determine if such action of railroad could be based on that part of hold harmless agreement relating to this section. Brogdon v. Southern R. Co., 384 F.2d 220, 1967 U.S. App. LEXIS 5157 (6th Cir. Tenn. 1967).

2. Evidence.

Where height of conveyor contributed to accident causing death, the erection of such conveyor in violation of this section by the employer loading car, with knowledge of the railroad was sufficient to uphold a finding of negligence on both the part of the railroad and the employer. Brogdon v. Southern R. Co., 384 F.2d 220, 1967 U.S. App. LEXIS 5157 (6th Cir. Tenn. 1967).

Collateral References.

Duty of railroad company toward employees with respect to close clearance of objects alongside track. 50 A.L.R.2d 674.

65-6-202. Part definitions.

For the purpose of this part, the following definitions will govern:

  1. “Height” of a freight car is the distance between the top of the rail and the top of the running board;
  2. “Overhead clearance” is the vertical distance between the two (2) rails from the level of the top of the highest rail to a structure or obstruction above on tangent track and from the mean level of the two (2) rails on curved track;
  3. “Side” of a freight car is that part or appurtenance of the car at the maximum distance measured at right angles from the center line of the car;
  4. “Side clearance” is the shortest distance from the center line of track to a structure or obstruction at the side of track up to a distance of fifteen feet (15') and six inches (6") from the top of the rail; and
  5. “Width” of a freight car is twice the distance from the center line to the side of a car as defined in this section.

Acts 1949, ch. 178, § 2; C. Supp. 1950, § 2670.2; T.C.A. (orig. ed.), § 65-624.

65-6-203. Overhead clearance.

  1. The minimum overhead clearance above railroad tracks which are used or purported to be used for transporting freight cars shall be twenty-two feet (22'). Structures constructed prior to April 13, 1949, may be maintained at such clearance as was lawful at the time of construction.
  2. The overhead clearance above the top of the rail of such tracks located inside of buildings may be reduced to seventeen feet (17'); provided, that this clearance shall apply only to tracks operating within the buildings; and provided further, that when an overhead clearance of less than twenty-two feet (22') exists on tracks inside such buildings, all cars, trains, motors, engines or equipment shall be brought to a stop before entering such buildings.

Acts 1949, ch. 178, § 3; C. Supp. 1950, § 2670.3; T.C.A. (orig. ed.), § 65-625.

NOTES TO DECISIONS

1. Negligence.

Both the railroad and the industrial company over whose land an industrial spur track extended with insufficient overhead clearance in violation of this act were guilty of negligence which proximately caused or contributed to the death of an employee of the industrial company killed in the operation of a freight car over such spur track. Brogdon v. Southern R. Co., 253 F. Supp. 676, 1966 U.S. Dist. LEXIS 7751 (E.D. Tenn. 1966), aff'd, 384 F.2d 220, 1967 U.S. App. LEXIS 5157 (6th Cir. Tenn. 1967), aff'd, Brogdon v. Southern R. Co., 384 F.2d 220, 1967 U.S. App. LEXIS 5157 (6th Cir. Tenn. 1967).

65-6-204. Side clearance.

The minimum side clearance from center line of standard gauge railroad tracks which are used or purported to be used for transporting freight cars, except as prescribed in this section, shall be as follows:

  1. All structures and obstructions, except as specifically mentioned in this section, eight feet (8');
  2. All posts, pipes, crossing signals, and similar obstructions, eight feet (8');
  3. Platforms eight inches (8") or less above top of rail, four feet (4') and eight inches (8");
  4. Platforms four feet (4') or less above top of rail, seven feet (7') and six inches (6"), except platforms of railroad freight warehouse stations and freight transfer points, which shall have a clearance of not less than five feet (5') and nine inches (9");
  5. Platforms more than four feet (4') above top of rail used principally for loading and unloading refrigerator cars, eight feet (8');
  6. Switch boxes, switch operating mechanisms, and accessories necessary for the control and operation of signals and interlockers, projecting four inches (4") or less above top of rail, three feet (3');
  7. Low switch stands, dwarf signal stands and derail stands at center line of stand, six and one-half feet (6½');
  8. All structural parts of railroad bridges shall have clearances which conform to the recommendation of the A.R.E.A. in effect when construction is begun;
  9. The side clearances specified in this section shall not apply to mail cranes during such times as the arms of such cranes are supporting mail sacks for delivery; provided, that the top arm is not lower than ten feet (10') and eight inches (8") above top of rail and neither arm extends within six feet (6') and five inches (5") from the center line of track;
  10. Icing platforms, seven feet (7'); and
  11. All minimum side clearances prescribed in this section are for tangent tracks. All structures adjacent to curve tracks shall have an additional minimum side clearance compensated for the curvature. Structures constructed prior to April 13, 1949, may be maintained at such clearance as was lawful at the time of construction.

Acts 1949, ch. 178, § 4; C. Supp. 1950, § 2670.4; Acts 1951, ch. 144, § 1; T.C.A. (orig. ed.), § 65-626.

65-6-205. Minimum distance between track.

  1. The minimum distance between the center lines of parallel standard gauge tracks shall be fourteen feet (14') except as provided in this section.
  2. The center line of any standard gauge ladder track, constructed parallel to any other adjacent track, shall have a clearance of not less than eighteen feet (18') from the center line of such other track.
  3. The minimum distance between the center lines of parallel team, house and industry tracks shall be thirteen feet (13').
  4. Tracks constructed prior to April 13, 1949, may be maintained at such clearance as was lawful at the time of construction.

Acts 1949, ch. 178, § 5; C. Supp. 1950, § 2670.5; T.C.A. (orig. ed.), § 65-627.

Collateral References.

Preemptive effect of federal railroad safety act, exclusive of “essentially local safety or security hazard” savings clause. 44 A.L.R. Fed. 2d 261.

65-6-206. Clearance of articles stored near tracks.

No merchandise, material or other articles shall be placed or permitted to remain either on the ground or on the platforms adjacent to any track at a distance less than eight feet (8') from the center line of track; provided, that this provision does not apply to materials to be used in the repair, replacement or maintenance of the tracks.

Acts 1949, ch. 178, § 6; C. Supp. 1950, § 2670.6; T.C.A. (orig. ed.), § 65-628.

65-6-207. Enforcement.

The department of transportation is directed to enforce compliance with this part; provided, that the commissioner of transportation or the commissioner's designee shall have the power and the duty to prescribe and authorize a vertical or side clearance less than the minimum required in this part in particular cases when, on application therefor, after notice posted at the railroad station nearest the place affected, and after hearing if requested, the department of transportation may find a reasonable necessity or justification for such action; and provided further, that this part shall not apply to temporary forms, supports, falsework, bracing, etc., used only during and in the construction or repair of any underpass or overpass for a street, road or highway.

Acts 1949, ch. 178, § 7; C. Supp. 1950, § 2670.7; Acts 1953, ch. 179, § 1; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-629; Acts 1995, ch. 305, § 24.

65-6-208. Penalty for noncompliance.

Any railroad failing or refusing to comply with this part is subject to a penalty of one hundred dollars ($100) for each violation. This penalty shall be enforced and collected as provided by this part. Any judgment rendered for such penalty may also contain an order by the court directing compliance.

Acts 1949, ch. 178, § 8; C. Supp. 1950, § 2670.8; T.C.A. (orig. ed.), § 65-630.

Part 3
Cattle Guards

65-6-301. Cattle guards on unfenced track.

Each railroad company whose unfenced track passes through a field or enclosure is required to place a good and sufficient cattle guard or stops at the points of entering such field or enclosure, and keep the same in good repair.

Acts 1889, ch. 248, § 1; Shan., § 1595; Code 1932, § 2662; T.C.A. (orig. ed.), § 65-645.

Law Reviews.

Easements in Tennessee, 24 Tenn. L. Rev. 619 (1956).

NOTES TO DECISIONS

1. Legislative Purpose.

This statute was intended to protect lands and crops of adjacent landowners or their tenants from the incursion of stray cattle and other livestock and also to prevent escape of such animals from the premises. Louisville & N. R. Co. v. Timmons, 116 Tenn. 29, 91 S.W. 1116, 1905 Tenn. LEXIS 3 (1906).

The object of this statute is to give protection to the owner of the enclosed land through which the unfenced railroad track runs, whether such owner is a tenant or an owner in fee, not to furnish protection to the stranger whose trespassing animals are injured in endeavoring to pass over the cattle guard, either into the enclosure of the landowner or when being driven out by him or his employees. If he is entitled to any relief at all, it must be outside of this statute. Hardin v. Nashville, C. & St. L. Ry., 1 Tenn. Civ. App. (1 Higgins) 359 (1910). See Louisville & N. R. Co. v. Timmons, 116 Tenn. 29, 91 S.W. 1116, 1905 Tenn. LEXIS 3 (1906).

2. Enclosure.

A railroad company is not relieved of its statutory duty by reason of the fact that the enclosed premises on one side of the track are unfit for agricultural or other uses. Louisville & N. R. Co. v. Bigbee, 100 Tenn. 204, 45 S.W. 671, 1897 Tenn. LEXIS 157 (1897).

Where the railroad runs along the side of the land and does not enter the enclosure, the question whether the railroad company is bound to erect the cattle guards is reserved, but doubt is expressed as to such requirement. Louisville & N. R. Co. v. Bigbee, 100 Tenn. 204, 45 S.W. 671, 1897 Tenn. LEXIS 157 (1897).

As a condition precedent to the recovery of damages for the failure of the railroad company to erect the cattle guards, the occupation of the landowner must be evidenced by a fence or some other form of enclosure, to which the railroad company may join its cattle guards, devices, or wing fences. Louisville & N. R. Co. v. Bigbee, 100 Tenn. 204, 45 S.W. 671, 1897 Tenn. LEXIS 157 (1897); Louisville & N. R. Co. v. Timmons, 116 Tenn. 29, 91 S.W. 1116, 1905 Tenn. LEXIS 3 (1906).

3. Guards.

The track may be fenced in lieu of cattle guards, if such precaution be necessary to the protection of the track. The statute provides for cattle guards, but its purpose will be met by equivalent protection in another form. Louisville & N. R. Co. v. Timmons, 116 Tenn. 29, 91 S.W. 1116, 1905 Tenn. LEXIS 3 (1906).

The requirement as to cattle guards is for the benefit of the landowner, and he may waive the same; and he cannot lawfully complain of injuries suffered during the existence of such waiver. Where the landowner enters into negotiations with the railroad company for the fencing of his lands on the basis of a division of the expense, in lieu of putting in cattle guards, he will be held to have waived the absence of cattle guards during the pendency of such negotiations. Louisville & N. R. Co. v. Timmons, 116 Tenn. 29, 91 S.W. 1116, 1905 Tenn. LEXIS 3 (1906).

It is no defense that cattle guards would endanger trains. Louisville & N. R. Co. v. Timmons, 116 Tenn. 29, 91 S.W. 1116, 1905 Tenn. LEXIS 3 (1906).

The sufficiency of a cattle guard is a question of fact, and where there is material proof showing its insufficiency, the appellate court is bound by the finding of such insufficiency by the circuit judge sitting as a jury. Tennessee C.R.R. v. Smith, 1 Tenn. Civ. App. (1 Higgins) 208 (1910).

A railroad company is not liable to the owner of adjacent land for the death of his mule resulting from injuries received by attempting to cross a cattle guard erected by the railroad company at a place where it was under no obligation to erect and maintain the same. The railroad company was under no common law or statutory duty to fence its track at this point to keep off trespassing animals; and since the mule was not killed or injured by a moving train, the company owed the plaintiff no statutory duty to fence its track at that point. Hardin v. Nashville, C. & St. L. Ry., 1 Tenn. Civ. App. (1 Higgins) 359 (1910).

4. Wing Fences.

While the statute does not, in terms, require the railroad company to construct any wings, but only good and sufficient cattle guards or stops at the line of the field of enclosure, yet it is required to construct its pits or other devices across its track and upon its roadway, cuts, and embankments until it reaches the point where the land is being used and occupied by the landowner as the owner of the fee; and it is the duty of such landowner to construct the wing fences over that part of the right of way occupied and used by him, with proper wings connecting with the cattle guards and other devices of the railroad company and its line of roadway. Louisville & N. R. Co. v. Bigbee, 100 Tenn. 204, 45 S.W. 671, 1897 Tenn. LEXIS 157 (1897).

The duty of a railroad company to provide wing fences or other devices in connection with its pits and cattle guards is satisfied by the erection of wing fences extending over that part of its right of way which is actually occupied and used by the company for railroad purposes. The landowner owning the fee in the right of way must maintain fences upon that part of the right of way which has not been appropriated by the company for railroad purposes and which still remains in his possession. Louisville & N. R. Co. v. Bigbee, 100 Tenn. 204, 45 S.W. 671, 1897 Tenn. LEXIS 157 (1897).

5. Duty to Trespassers.

It is not incumbent upon a railroad company to maintain cattle guards in such condition as to protect trespassing stock from injuries thereon. Hardin v. Nashville, C. & St. L. Ry., 1 Tenn. Civ. App. (1 Higgins) 359 (1910).

Railroad was not liable for death of horse attempting to cross cattle guard, since railroad is liable only to property owners for damages to crops as result of trespassing animals crossing defective cattle guard. Southern R. Co. v. Morrell, 169 Tenn. 463, 89 S.W.2d 161, 1935 Tenn. LEXIS 70 (1936).

Collateral References.

“Owner,” scope and import of term in statutes requiring construction of cattle guards. 2 A.L.R. 798, 95 A.L.R. 1085.

Type, sufficiency as to, of cattle guards at public or private crossings. 75 A.L.R. 936.

65-6-302. Enlargement of unfenced area.

In case a field or enclosure through which unfenced railroad track passes shall be enlarged or extended, or the owner of the land over which such unfenced track passes shall open a field so as to embrace the track of such railroad, such railroad company is required to place good and sufficient cattle guards or stops at the margin of such enclosure or fields, and keep the same in repair; provided, that such owner shall give the nearest or most accessible agent of such company thirty (30) days' notice of such change.

Acts 1889, ch. 248, § 2; Shan., § 1596; Code 1932, § 2663; T.C.A. (orig. ed.), § 65-646.

65-6-303. Penalty for noncompliance.

Any railroad company neglecting or refusing to comply with this part shall be liable for all damages sustained by anyone by reason of such neglect or refusal; and, in order for the injured party to recover all damages such person sustained, it shall be only necessary for such person to prove such neglect or refusal, and the amount of such damages; provided, that such company shall not be liable if it shall be shown that the opening of such field was made capriciously and with intent to annoy and molest such company.

Acts 1889, ch. 248, § 3; Shan., § 1597; Code 1932, § 2664; T.C.A. (orig. ed.), § 65-647.

NOTES TO DECISIONS

1. Failure to Construct.

When livestock enters upon the track where it is not required to be fenced, and pursues it until struck by a train at a point where the track is required to be fenced but is not fenced, the railroad company, in the absence of other negligence, would not be liable under the statute. But as the statute imposes upon the company the duty to construct sufficient cattle guards, the company will be liable if it has not constructed cattle guards sufficient to prevent the stock from pursuing the track and colliding with the train. Nashville, C. & St. L.R.R. v. Hughes, 94 Tenn. 450, 29 S.W. 723, 1894 Tenn. LEXIS 58 (1894).

2. Warrant of Justice.

A justice's warrant against a railroad company for damages does not state a sufficient cause of action, where it does not state that the plaintiff is a landowner through whose land the defendant's unfenced track runs, and where it fails to show that the defendant railroad owed the plaintiff some duty to maintain its cattle guard in a safe and proper condition. Hardin v. Nashville, C. & St. L. Ry., 1 Tenn. Civ. App. (1 Higgins) 359 (1910). Also see, Memphis S. R. Co. v. Flood, 122 Tenn. 56, 113 S.W. 384, 1909 Tenn. LEXIS 3 (1908), overruled, Shay v. Harper, 202 Tenn. 141, 303 S.W.2d 335, 1957 Tenn. LEXIS 373, 1957 Tenn. LEXIS 374 (1957); Nashville, C. & St. L. Ry. v. Davis, 127 Tenn. 167, 154 S.W. 530, 1912 Tenn. LEXIS 20 (1912), overruled, Shay v. Harper, 202 Tenn. 141, 303 S.W.2d 335, 1957 Tenn. LEXIS 374 (1957); Jett & Brooks v. Southern Ry., 130 Tenn. 237, 169 S.W. 767, 1914 Tenn. LEXIS 22 (1914); Nashville, C. & St. L. Ry. v. Williamson, 137 Tenn. 152, 192 S.W. 385, 1916 Tenn. LEXIS 62 (1916); Baker v. Griffeth, 138 Tenn. 670, 200 S.W. 823, 1917 Tenn. LEXIS 74 (1918).

3. Damages.

The damages to which an injured landowner is entitled for the failure of a railroad company to erect cattle guards are to be measured in relation to the use to which the land is put by the owner. Louisville & N. R. Co. v. Timmons, 116 Tenn. 29, 91 S.W. 1116, 1905 Tenn. LEXIS 3 (1906).

Railroad was not liable for death of horse attempting to cross cattle guard, since railroad is liable only to property owners for damages to crops as result of trespassing animals crossing defective cattle guard. Southern R. Co. v. Morrell, 169 Tenn. 463, 89 S.W.2d 161, 1935 Tenn. LEXIS 70 (1936).

Chapter 7
Subscription to Railroad Stock by Counties and Municipalities

65-7-101. Power of locality to become stockholder.

Any county, incorporated city, or town may become a stockholder in any railroad company incorporated under the general laws of this state, to an amount not exceeding, in the aggregate, one-tenth (1/10) of its taxable property, by complying with the requirements of this chapter.

Acts 1887, ch. 3, § 1; Shan., § 1558; Code 1932, § 2612; T.C.A. (orig. ed.), § 65-701.

Cross-References. Rights as stockholders, § 65-7-116.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal, State and County Aid, §§ 2-7.

NOTES TO DECISIONS

1. Constitutionality.

The act of which this section is a part is not unconstitutional because of the provision in § 65-7-113 permitting the subscription to be paid in bonds without submitting the question of their issuance to the voters. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897).

The constitutional provision prohibiting counties and municipal corporations to give or lend their credit or to become stockholders in any enterprises for county and corporation purposes, respectively, is self-executing as to the restriction and limitation upon their power; but this constitutional provision does not, by implication, authorize the giving or lending of credit, or the taking of stock in such enterprises, even upon the assent of three fourths of the votes cast in the election. The required election to obtain such assent of the voters must be authorized and held pursuant to valid statute enacted for that purpose. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897). See Tax-Payers of Milan v. Tennessee C. R. Co., 79 Tenn. 329, 1883 Tenn. LEXIS 69 (1883); State ex rel. Morristown & C. G. R. Co. v. Mayor, etc., of Morristown, 93 Tenn. 239, 24 S.W. 13, 1893 Tenn. LEXIS 50 (1893); Richardson v. Marshall County, 100 Tenn. 346, 45 S.W. 440, 1897 Tenn. LEXIS 123 (1898).

2. Subscription of Stock.

A subscription to stock of railroad by city under terms prescribed by Acts 1887, was not subject to implied condition that city was not liable if all the stock necessary to complete the enterprise was not taken. Sweeney v. Tennessee C. R. Co., 118 Tenn. 297, 100 S.W. 732, 1906 Tenn. LEXIS 98 (1907).

3. Subscription to Foreign Railroad Stock.

The subscription for stock in a foreign railroad corporation and the issuance of bonds in payment therefor by a municipal corporation are not authorized by any statute in this state, and such bonds are absolutely void. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897). But see Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903).

A recital in municipal bonds that they were issued pursuant to and in accordance with this statute does not estop the municipality to dispute the validity of the bonds in the hands of an innocent holder where they were illegally issued to a nonresident railroad corporation. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897). But see Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903).

Collateral References.

Fraud by nonperformance of promise of railroad aid. 51 A.L.R. 123, 68 A.L.R. 635, 91 A.L.R. 1295, 125 A.L.R. 879.

Taxation for purpose of municipal aid to railroad company, as within constitutional provisions prohibiting legislature from imposing taxes for town, county, city and corporate purposes. 46 A.L.R. 728, 106 A.L.R. 906.

65-7-102. Right to subscribe to stock.

No county, incorporated city, or town shall subscribe to the capital stock of any railroad company under this chapter unless its railroad runs through the county or within one (1) mile of the incorporated city or town making the subscription; provided, that any county within which the railroad or any of its branches terminates may subscribe under this chapter.

Acts 1887, ch. 3, § 2; Shan., § 1559; Code 1932, § 2613; T.C.A. (orig. ed.), § 65-702.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal, State and County Aid, § 4.

NOTES TO DECISIONS

1. Construction.

In construing contract for issuance of bonds in three installments for construction of railroad to three separate points within the county, this section providing for issuance of bonds for construction of railroad terminating in county should be construed with § 65-7-112 providing for issuance of bonds in installments. Shell v. Carter County, 42 S.W. 78, 1896 Tenn. Ch. App. LEXIS 118 (1896).

65-7-103. Conditions precedent to subscription.

  1. Before any county makes any subscription under this chapter, the president, or other authorized officer or agent of the railroad company, shall submit to the county mayor an application in the name of the company, setting forth the proposed termini of its railroad, the amount of the subscription asked for, the time within which its road will be constructed through the county, and that the application is made under this chapter, and the same shall be accompanied by a plan or map, certified by the chief engineer of the company, showing the general direction and line of its railroad in the county.
  2. Before an incorporated city or town shall make any subscription under this chapter, such application must be submitted to its mayor or chief executive officer, showing the proposed termini of its railroad, accompanied with the declaration, on the part of the company, that it will locate and construct its railroad within one (1) mile of such incorporated city or town, within such time as shall be fixed in the application.

Acts 1887, ch. 3, § 3; Shan., § 1560; Code 1932, § 2614; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 65-703.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal, State and County Aid, § 7.

NOTES TO DECISIONS

1. Application.

The application for the subscription must purport, in terms, upon its face, to be made under this statute. The requirement of the statute is mandatory. State ex rel. Morristown & C. G. R. Co. v. Mayor, etc., of Morristown, 93 Tenn. 239, 24 S.W. 13, 1893 Tenn. LEXIS 50 (1893).

The subscription for stock in a railroad company cannot be sustained where the application describes two lines, only one of which is located by survey, with the cost of construction estimated, as required by the statute, and the other left wholly indefinite; and the road is actually built upon a line and to a terminus other than that defined in the application. State ex rel. Morristown & C. G. R. Co. v. Mayor, etc., of Morristown, 93 Tenn. 239, 24 S.W. 13, 1893 Tenn. LEXIS 50 (1893).

The plan or map showing the general direction and line of the railroad in the county, certified by the chief engineer of the company, is sufficient. Tennessee C. R. Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112, 1902 Tenn. LEXIS 97 (1903).

65-7-104. Record of application, plan, and amount — Ordering of election.

The county legislative body, or board of mayor and aldermen, or other governing body, as the case may be, shall spread upon its records the application and accompanying plan or map or declaration, and the amount to be voted upon by the people, and shall have full power to order such elections according to the laws regulating elections in this state.

Acts 1887, ch. 3, § 5; Shan., § 1563; Code 1932, § 2617; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 65-704.

65-7-105. County election on question — Order by legislative body.

Upon the presentation of the application, with the accompanying plan or map, as provided in § 65-7-103, it is made the duty of the county mayor to give ten (10) days' notice to each and every member of the county legislative body of the county mayor's county to assemble at the courthouse of the county, in order to take action on such application. If at such special meeting of the county legislative body a majority of the members in commission shall be of the opinion that an election should be held in the county to determine whether or not the county should make the subscription applied for, the legislative body shall so order.

Acts 1887, ch. 3, § 4; Shan., § 1561; Code 1932, § 2615; impl. am. Acts 1978, ch. 934, §§ 7, 16, 36; T.C.A. (orig. ed.), § 65-705.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal, State and County Aid, § 7.

65-7-106. City or town election on question — Order by governing body.

In like manner, upon the presentation of the application to the mayor or other chief executive officer of any incorporated city or town, accompanied by a declaration on the part of the company that its line of railroad shall be located and constructed within one (1) mile of such city or town, as provided in §§ 65-7-10165-7-105, then it is made the duty of such mayor or chief executive officer to convene the board of mayor and aldermen, or other governing or representative body of such city or town, and submit such application for its consideration. Should a majority of the board of mayor and aldermen, or other governing or representative body of such city or town, be of the opinion that an election should be held in the same to determine whether or not such city or town should make the subscription, it shall so order.

Acts 1887, ch. 3, § 4; Shan., § 1562; Code 1932, § 2616; T.C.A. (orig. ed.), § 65-706.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal, State and County Aid, § 7.

NOTES TO DECISIONS

1. Election Order.

It is not the unqualified duty of the board to order an election. The board is not required to consider the general question of expediency. It would seem that the qualification of the applicant, as to whether it is a foreign or domestic corporation, is one of the subjects, an important one, to be considered in forming an opinion whether the application should be submitted to the electors or not. The general trend of the decisions is to hold that, unless there is clear evidence to the contrary, the general assembly intended that the question of the existence of the conditions upon which the power is granted should be referred to the governing body of the municipality exercising the power. Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903).

65-7-107. Notice of election.

The election shall be advertised at least thirty (30) days beforehand, by notice published in a newspaper of the county, if there is one, or if not, posted at the different places of voting, specifying the time it is to be held, for what railroad, and the amount of stock proposed to be taken.

Acts 1887, ch. 3, § 6; Shan., § 1564; Code 1932, § 2618; T.C.A. (orig. ed.), § 65-707.

65-7-108. Conduct of election — Certificate of result — Validity.

The county election commission shall open and hold an election at every voting place established by law in such county, city, or town, and its certificate of the result of the election to the county legislative body, or to the proper authorities of such city or town, shall name, in writing, every established voting place at which an election was opened and held, and every one at which an election was not held. If it shall appear that the election was not opened and held in every voting place, then the election shall be declared null and void, and of no effect, unless it shall be made to appear, to the satisfaction of the county legislative body or city or town authorities, that the officer of elections was present at such voting place on the day and hour required by law, and did endeavor to procure judges and clerks to hold the election, and that the officer of elections was positively unable to do so, and the election at the precinct could not be held for the want of judges and clerks to hold it.

Acts 1887, ch. 3, § 7; impl. am. Acts 1907, ch. 436, § 1; Shan., § 1565; Code 1932, § 2619; impl. am. Acts 1972, ch. 740, § 7; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 65-708.

65-7-109. Election — Style of ballot.

At the election thus held, those voters who are in favor of the subscription shall put upon their tickets the words, “For subscription,” and those opposed, “No subscription”; provided, that in cities and towns where the Australian or Dortch ballot law applies, the ticket or ballot used in such election shall conform as near as may be to the style of the ballot prescribed by law. Such ballot shall be deemed legally sufficient if it has plainly printed thereon substantially the following: “Shall (name of county, city, or town) subscribe $  to the capital stock of the (name of railroad company) in accordance with the terms and conditions of the application of (name of railroad company) submitted to the (name of county, city, or town), on  day of  20 ,” followed by the words “Yes” and “No” so that voters can intelligently vote their choices by making a cross mark (X) after the word “Yes” or “No.”

Acts 1887, ch. 3, § 8; Shan., § 1566; Acts 1917, ch. 11, § 1; 1917, ch. 105, § 1; mod. Code 1932, § 2620; T.C.A. (orig. ed.), § 65-709.

Cross-References. Form and arrangement on ballots, §§ 2-5-207, 2-5-208.

65-7-110. Action on return of commission.

It is the duty of the county legislative body, or governing body of such city or town, as the case may be, to convene on the call of its presiding officer, for the purpose of acting on the return of the county election commission, within ten (10) days after such election; and if it appears that the same was, in all respects, fair, and that three-fourths (¾) of the legal votes cast at such election were in favor of subscription, then it shall have full power, and shall proceed, to make and execute all necessary orders, and take such action as may be required to make the subscription effective according to the terms thereof and these provisions.

Acts 1887, ch. 3, § 9; impl. am. Acts 1907, ch. 436, § 1; Shan., § 1567; Code 1932, § 2621; impl. am. Acts 1972, ch. 740, § 7; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 65-710.

NOTES TO DECISIONS

1. “Votes” Defined.

The word “votes” means legal votes, for illegal votes or ballots do not really constitute votes at all. Catlett v. Knoxville, S. & E. R. Co., 120 Tenn. 699, 112 S.W. 559, 1908 Tenn. LEXIS 52 (1908).

2. Pleading of Illegal Votes.

Allegation in complaint to enjoin issuance of bonds by county to pay for subscription to stock of railroad that specified persons voted illegally in election, and that approval of three fourths of the voters was not legally obtained, was a privileged statement by the pleader since it was essential to his cause of action, and pleader was therefore not liable in damages to a voter for publishing defamatory matter. Crockett v. McLanahan, 109 Tenn. 517, 72 S.W. 950, 1902 Tenn. LEXIS 90, 61 L.R.A. 914 (1903).

65-7-111. Second election.

Should any county, town, or city fail to vote the subscription to any railroad at any election held for the purpose, the county, city, or town may, in its discretion, at any time after thirty (30) days, order another election, if desired by the railroad company.

Acts 1887, ch. 3, § 10; Shan., § 1568; Code 1932, § 2622; T.C.A. (orig. ed.), § 65-711.

65-7-112. Subscriptions — Time of payment.

Such subscription of any county or incorporated city or town shall not become due and payable unless the railroad company shall have constructed and put in operation within the time fixed in the application, and substantially in the direction and on the line as shown in the plan or map, that portion of its railroad located within the county making the subscription, or that portion of its railroad located within the county in which is situated the incorporated city or town making the subscription, as the case may be; provided, that any county, incorporated city, or town making a subscription under these provisions, may, in addition to the restrictions imposed by this section, stipulate with the railroad company that its subscription shall not become due and payable until the company shall construct its road to such points, or for such distances, as may be agreed upon.

Acts 1887, ch. 3, § 11; Shan., § 1569; Code 1932, § 2623; T.C.A. (orig. ed.), § 65-712.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal, State and County Aid, §§ 5, 11.

NOTES TO DECISIONS

1. Construction.

In construing contract for issuance of bonds in installments conditioned upon railroad being completed to three points within the county, this section providing for issuance of bonds in installments should be construed with § 65-7-102 providing for subscription of stock of railroad terminating in county. Shell v. Carter County, 42 S.W. 78, 1896 Tenn. Ch. App. LEXIS 118 (1896).

2. Installment Contract.

Where contract provided for issuance of $50,000 in bonds of county for subscription to stock of railroad to terminate in county, and where contract further provided that bonds would be issued in installments upon railroad reaching a specified point in the county, an issue of bonds in amount of $20,000 when railroad reached first point in county was valid even though railroad could not be completed within two years specified in contract. Shell v. Carter County, 42 S.W. 78, 1896 Tenn. Ch. App. LEXIS 118 (1896).

65-7-113. Bond issue for payment.

When such subscription shall become due and payable, as provided in § 65-7-112, the county or city or town making the subscription shall make and execute its coupon bonds for the amount of such subscription, payable not more than twenty (20) years after date, and bearing interest at such rate as may be agreed upon, payable semiannually, and deliver the same to the railroad company; provided, that such county, city, or town may pay such subscription in cash at maturity, if it shall so elect.

Acts 1887, ch. 3, § 12; Shan., § 1570; Code 1932, § 2624; Acts 1980, ch. 601, § 21; T.C.A. (orig. ed.), § 65-713.

Cross-References. Maximum effective rates of interest, § 47-14-103.

NOTES TO DECISIONS

1. Constitutionality.

Permitting the subscription to be paid in bonds to be issued without submitting the question of their issuance to the voters does not render the statute invalid or unconstitutional, for the payment of a valid subscription in bonds is not a lending of credit in the sense of Tenn. Const., art. II, § 29. Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897); Red River Furnace Co. v. Tennessee C. R. Co., 113 Tenn. 697, 87 S.W. 1016, 1904 Tenn. LEXIS 60 (1903).

2. Recitals in Bonds.

Where the bonds recited their issuance under statute, and “in issuing the same all the provisions and requirements of each of said statutes have been strictly fulfilled and complied with,” the municipality was precluded by such recitals from denying that the company was a domestic corporation, in a suit by a bona fide holder of such bonds, where a domestic corporation of the same name existed, and its articles of incorporation were of record, in the county where the bonds were issued. Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903). But see Johnson City v. Railroad, 100 Tenn. 138, 44 S.W. 670, 1897 Tenn. LEXIS 97 (1897).

65-7-114. Tax levy to meet bond payments.

When the subscription so made becomes due, as provided, it is made the duty of the county legislative body, or municipal authorities, as the case may be, on the receipt of the certificates of stock, as provided in § 65-7-116, to levy, from time to time, such taxes upon the taxable property, privileges, and persons liable by law to taxation within the county or corporate limits, as the case may be, as will be sufficient and necessary to meet the maturing interest on the bonds of such county, town, or city, and to provide for the payment of the principal; provided, that no tax to pay such subscription exceeding twenty-five percent (25%) of the amount subscribed shall be levied in any one (1) year.

Acts 1887, ch. 3, § 13; Shan., § 1571; Code 1932, § 2625; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 65-714.

NOTES TO DECISIONS

1. Application of Tax.

A tax levied to pay the principal and interest of the indebtedness of the county created by the issuance of its bonds to pay its subscription to the stock of a railroad company cannot be applied to other purposes until that debt is wholly extinguished. Kennedy v. Montgomery County, 98 Tenn. 165, 38 S.W. 1075, 1896 Tenn. LEXIS 215 (1897).

65-7-115. Collection of tax.

The taxes prescribed in § 65-7-114 shall be levied and collected as other county, town, or corporation taxes, and paid into the treasury of the county, city or town as other taxes.

Acts 1887, ch. 3, § 14; Shan., § 1572; Code 1932, § 2626; T.C.A. (orig. ed.), § 65-715.

65-7-116. Issuance of stock.

The railroad company shall, when the subscription becomes due and payable, as prescribed, make out and deliver to the county, city, or town, as the case may be, certificates of its capital stock amounting to the subscription, and the certificates shall be held, owned, and voted by such county, city, or town as by other stockholders, and the certificates of stock, and dividends and profits thereon, and the public benefits derived from the construction and operation of the railroad, shall be in full consideration of such subscription and the benefits derived therefrom by the railroad company.

Acts 1887, ch. 3, § 15; Shan., § 1573; Code 1932, § 2627; T.C.A. (orig. ed.), § 65-716.

Chapter 8
Purchase and Sale of Railroads

65-8-101. Power to acquire and operate other railroads.

Every railroad corporation in this state, and railroad companies existing under the joint legislation of this and another state or states, and railroad companies incorporated by this, or another or other state or states, whose roads connect with, or intersect each other in this or any other state, and all railroad corporations created in this state, or by virtue of statutes of any other state, ratified and confirmed by the authority of this state, has the power to acquire, by purchase or other lawful contract, and have, hold, use, and operate, any railroad, with its franchises, belonging to any other railroad corporation; and likewise to have, hold, use, and operate any such railroad, with its franchises, which it may have purchased or acquired.

Acts 1871, ch. 22, § 1; 1871, ch. 69, § 1; 1875, ch. 51, § 1; 1877, ch. 72, § 1; Shan., § 1509; mod. Code 1932, § 2580; T.C.A. (orig. ed.), § 65-801.

Cross-References. Acquisition of branches and extensions, § 65-6-130.

Authorization by stockholders, § 65-6-101.

Foreign companies, right to purchase and hold realty, § 65-6-114.

65-8-102. Borrowing money for payment — Issuance of bonds.

Any railroad company described in § 65-8-101 shall have the power to borrow money and to issue its bonds therefor, or for any other indebtedness or liability which it may incur, or may have incurred, in the exercise of its lawful purposes, and to secure the payment of such bonds, with the interest thereon, by a mortgage of the whole or any part of its railroad and equipment and other property and franchises, containing such provisions as its directors shall approve.

Acts 1871, ch. 22, § 3; 1871, ch. 69, § 1; Shan., § 1510; Code 1932, § 2581; T.C.A. (orig. ed.), § 65-802.

Cross-References. Authorization by stockholders, § 65-6-102.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 53.

65-8-103. Continuation of business by seller to wind up business.

In case the railroad company, whose corporate powers have been transferred by a sale as aforementioned, has brought suits in law or equity, or holds any claims or rights of action, excepted and reserved by the terms of the sale, the corporation may have a continuance sufficiently long for the purpose of collecting the claims and paying to or dividing the same among the stockholders or the persons entitled to such claims.

Acts 1871, ch. 22, § 2; Shan., § 1510a1; Code 1932, § 2582; T.C.A. (orig. ed.), § 65-803.

65-8-104. Authority to purchase under judicial sale.

Any railroad corporation which has been created, or whose corporate existence has been recognized, by any act of the general assembly, is empowered to become a purchaser of any railroad sold in this or any adjoining state under any judicial proceeding in such state, or sold by any person who may have purchased or derived title under or from any such judicial sale.

Acts 1877, ch. 20, § 1; Shan., § 1511; Code 1932, § 2583; T.C.A. (orig. ed.), § 65-804.

65-8-105. Rights of purchase under judicial sale.

All the rights, privileges, and immunities appertaining to the franchises sold under judicial proceedings instituted against delinquent railroads by the state, under the act of incorporation and the amendments thereto, and the general internal improvement law of the state, and acts amendatory thereof, shall be transferred to, and vest in, the purchaser.

Acts 1870-1871, ch. 23, § 10; Shan. § 1512; mod. Code 1932, § 2584; T.C.A. (orig. ed.), § 65-805.

NOTES TO DECISIONS

1. Immunity of Railroad Under Sale.

Where a railroad is exempt from taxation by a provision in its charter, and a suit is instituted by the state to enforce its statutory mortgage and asks for a sale under which terms are to be specified by the court pursuant to statute, and the decree vests in the purchaser all of the rights, privileges and immunities of debtor corporation, the immunity from taxation passes to the purchaser. Knoxville & O. R. R. Co. v. Hicks, 68 Tenn. 442, 1877 Tenn. LEXIS 43 (1877); State v. Nashville, C. & St. L. Ry., 80 Tenn. 583, 1883 Tenn. LEXIS 210 (1883), limited, Memphis v. Phoenix Fire & Marine Ins. Co., 91 Tenn. 566, 19 S.W. 1044, 1892 Tenn. LEXIS 30 (1892); Buchanan v. Knoxville & O.R.R., 71 F. 324, 1895 U.S. App. LEXIS 2620 (6th Cir. 1895).

A grant of immunity from taxation does not pass in suit by state to foreclose lien where the decree merely specifies that the franchise and property of railroad is to be sold, since decree must expressly state that rights, privileges and immunities are included in the sale in order for the immunity from taxation to pass. Wilson v. Gaines, 3 Cooper's Tenn. Ch. 597 (1877), aff'd, 2 Shannon 564, 68 Tenn. 546, 1877 Tenn. LEXIS 46 (1877), aff'd, Wilson v. Gaines, 2 Shannon 564, 68 Tenn. 546, 1877 Tenn. LEXIS 46 (1877), aff'd, 103 U.S. 417, 26 L. Ed. 401, 1880 U.S. LEXIS 2132 (1881); Wilson v. Gaines, 2 Shannon 564, 68 Tenn. 546, 1877 Tenn. LEXIS 46 (1877), aff'd, 103 U.S. 417, 26 L. Ed. 401, 1880 U.S. LEXIS 2132 (1881); Wilson v. Gaines, 103 U.S. 417, 26 L. Ed. 401, 1880 U.S. LEXIS 2132 (1881); Railroad Co. v. County of Hamblen, 102 U.S. 273, 26 L. Ed. 152, 1880 U.S. LEXIS 2036 (Tenn. Nov. 29, 1880); Picard v. East Tenn., Va. & Ga. R.R., 130 U.S. 637, 9 S. Ct. 640, 32 L. Ed. 1051, 1889 U.S. LEXIS 1783 (1889).

65-8-106. Sale under mortgage.

  1. The purchasers of any railroad chartered by this state, and lying in whole or in part in this state, sold under any mortgage executed by it, when put in possession of the railroad by any court of competent jurisdiction, shall have the same right to operate the same in this state as the incorporated company which executed the mortgage.
  2. When a mortgage executed, as provided or allowed by law, upon the franchises and property, of every description of an incorporated railroad lying within the state, either in whole or in part, shall be foreclosed in any court of this state or of the United States having jurisdiction thereof, by sale under the mortgage, the purchasers at the sale shall, by virtue thereof, be entitled to and be invested with the franchises and property, and with all the rights, privileges, and immunities appertaining thereto by the laws of this state, in the act of incorporation of the company, and the amendments thereto, and the general internal improvement law, or other laws of this state, in as full a manner as the company or companies are or were.

Acts 1877, ch. 12, §§ 1, 2; Shan., §§ 1513, 1514; Code 1932, §§ 2585, 2588; T.C.A. (orig. ed.), §§ 65-806, 65-808.

NOTES TO DECISIONS

1. Foreclosure Includes Charter.

Where corporation executed mortgage, it may not surrender its charter so as to defeat the rights of the mortgage creditors as to its franchise and property. The purchaser at foreclosure sale is entitled to be invested with the property and franchises, and may file certificate with secretary of state. Briggs v. Clawson Bros., 8 Tenn. App. 251, — S.W.2d —, 1928 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1928).

65-8-107. Sale under judgment.

Whenever the property and franchises of any railroad are sold, under any judgment, decree, or process from any of the courts of record of this state, for the payment of any debt due from the incorporated company, the purchasers at the sale, or their assignees, may organize into a corporate body, with the right to have, hold, and operate the property and franchises so purchased, with all powers, rights, privileges, and immunities, and subject to all the restrictions, imposed by the original charter, and amendments thereto, of the corporation whose property and franchises have been sold.

Acts 1879, ch. 52, § 2; Shan., § 1513a; Code 1932, § 2586; T.C.A. (orig. ed.), § 65-807.

65-8-108. Right of purchaser to tax exemption waived.

Nothing in § 65-8-106, § 65-8-107 or § 65-10-112 shall be construed to exempt the railroad and its property from liability to state, county, and municipal taxation; and the purchasers shall waive any right of exemption from taxation, if any existed in the original charter, or other law of this state, in favor of such railroad property or stock therein.

Acts 1877, ch. 12, §§ 2, 5; Shan., § 1514a1; Code 1932, § 2589; T.C.A. (orig. ed.), § 65-809.

65-8-109. Organization of new company by purchasers.

  1. The purchasers at the sale mentioned in §§ 65-8-107 and 65-8-108 may, after being put in possession of the property, meet, adopt a name for the corporation to operate the railroad, and elect a board of directors, of their numbers, of not less than three (3), at least one (1) of whom shall reside in this state.
  2. At such meeting, every person interested in the purchase shall be entitled to one (1) vote for every one hundred dollars ($100) of such interest, unless the number of votes to which each party shall be entitled, and the mode of representing the interest of the purchasers, shall have been previously agreed upon among the parties interested in the purchase.
  3. The board of directors shall proceed to elect a president and such other officers as may be expedient for the proper management of the property, fix their compensation and duties, and adopt bylaws for the government of the company, not inconsistent with the laws of this state; and shall fix the amount of the capital stock of the company, and the amount of stock or bonds, or both, which shall represent the interest of the purchasers, dividing such stock into shares of one hundred dollars ($100) each.
  4. The board of directors shall make a certificate showing the name of the corporation, the amount of its capital stock, the shares into which the same is divided, the number and residence of the board of directors, where the road lies, and the name or names by which it had theretofore been chartered and known, and shall cause the same to be signed by the president and the members of such board, and to be filed with the secretary of state; and thereupon the purchasers shall be a body corporate, under the name so adopted, with all the rights, powers, privileges, immunities, and franchises possessed under the laws of this state by the company or companies whose road and franchises were sold as aforementioned under the acts of incorporation thereof, or any amendments thereto, and any subsequent act or acts of this state; and with all the rights, powers, privileges, and franchises possessed by the corporation formed and organized for the building of railroads under this Code.
  5. The board of directors shall issue, to the parties interested in the purchase of the railroads, shares of the capital stock thereof of one hundred dollars ($100) each, to such amount as the board of directors shall determine, in proportion to such interested parties' rights and interests in the property, which shares shall be fully paid, and not liable to calls; and also such bonds and obligations as the board of directors may determine.

Acts 1877, ch. 12, § 3; Shan., §§ 1515-1519; Code 1932, §§ 2590-2594; T.C.A. (orig. ed.), §§ 65-810 — 65-814.

Cross-References. Bond issues authorized, § 65-6-102.

Chapter 9
Consolidation of Railroads

65-9-101. Power to consolidate.

Every railroad corporation existing in this state, and having authority to operate and maintain a railroad in this state, has the power to consolidate with any other railroad corporation whose road connects with or intersects the road of such existing corporation, or any branch of such road.

Acts 1871, ch. 69, § 1; 1875, ch. 51, § 1; 1877, ch. 72, § 2; Shan., § 1522; Code 1932, § 2597; T.C.A. (orig. ed.), § 65-901.

Cross-References. Consolidation of competing or parallel lines unlawful, § 65-6-131.

65-9-102. Consolidation agreement.

The agreement of consolidation shall be in writing, and shall set forth the corporate name agreed upon, and the terms and conditions of the consolidation.

Acts 1871, ch. 69, § 1; 1877, ch. 72, § 2; Shan., § 1523; Code 1932,  § 2598; T.C.A. (orig. ed.), § 65-902.

65-9-103. Approval of stockholders.

The consolidation shall not have effect until the terms and conditions of the agreement shall have been approved by a majority of the stockholders of each of the consolidating companies, at a regular annual meeting.

Acts 1867-1868, ch. 72, § 1; 1871, ch. 69, § 1; 1877, ch. 72, § 2; Shan., § 1524; mod. Code 1932, § 2599; T.C.A. (orig. ed.), § 65-903.

65-9-104. Agreement and evidence of approval recorded.

The agreement, together with the evidence of the stockholders' approval, shall be filed and recorded in the office of the secretary of state.

Acts 1871, ch. 69, § 1; 1877, ch. 72, § 2; Shan., § 1525; Code 1932, § 2600; T.C.A. (orig. ed.), § 65-904.

65-9-105. Rights of creditors.

The rights of creditors of the consolidating companies shall not be affected or impaired by such consolidation.

Acts 1871, ch. 69, § 1; 1877, ch. 12, § 4; 1877, ch. 72, § 2; Shan., § 1526; Code 1932, § 2601; T.C.A. (orig. ed.), § 65-905.

65-9-106. Rights and liabilities of consolidated corporation.

The corporation, formed by the consolidation of two (2) or more railroad corporations, shall have, possess, and exercise all the rights, powers, privileges, immunities, and franchises, and be subject to all the duties and obligations, not inconsistent with this chapter, conferred and imposed by the laws of this state upon such companies so consolidating, or either of them.

Acts 1877, ch. 72, § 3; Shan., § 1527; Code 1932, § 2602; T.C.A. (orig. ed.), § 65-906.

65-9-107. Powers of consolidated corporation.

The corporation shall have power to:

  1. Fix the number of its directors and the time of their election;
  2. Fix the number, names, and duties of its officers;
  3. Pass bylaws for the government of the company, and the management of its affairs;
  4. Create and divide its capital stock into two (2) or more classes, including common and preferred stock, any of which may be stock without par value and to issue the same, all as provided by title 48, chapter 16, pertaining to ordinary domestic corporations, which sections are declared to extend to corporations formed by the consolidation of two (2) or more railroad corporations; and any such corporation, heretofore so formed under the laws of this state, may avail itself of the powers and privileges hereby conferred by amendment or amendments to the charter of incorporation of such corporation, in the manner and by the means as now provided by law, or to the agreement of consolidation, setting forth the maximum number of shares of stock with nominal or par value and the maximum number of shares without nominal or par value that the corporation is authorized to have outstanding at any time, the classes, with the distinguishing characteristics of each, if any, into which the same are divided, and the nominal or par value of shares of stock other than shares which it is stated are to have no nominal or par value;
  5. Issue bonds and dispose of same in such form, and denomination, and bearing such interest, as the board of directors may determine, and to secure the payment thereof by mortgage of every and all the property and franchises of the consolidated company, and of the companies from which it was formed; and
  6. Do all other acts and things which the companies so consolidating, or either of them, might have done previous to such consolidation.

Acts 1877, ch. 72, § 3; Shan., § 1528; Code 1932, § 2603; Acts 1937, ch. 170, § 1; C. Supp. 1950, § 2603; T.C.A. (orig. ed.), § 65-907.

Compiler's Notes. Section 48-1-501, referred to in this section, was repealed by Acts 1986, ch. 887, § 17.05 and Acts 1987, ch. 242, § 18.05.

Section 48-1-505, referred to in this section, was repealed by Acts 1986, ch. 887, § 17.05 and Acts 1987, ch. 242, § 18.05.

NOTES TO DECISIONS

1. Effect of Consolidation.

The consolidation of corporations gives the new corporation all the rights of the old corporations and subjects it to all their liabilities. Miller v. Lancaster, 45 Tenn. 514, 1868 Tenn. LEXIS 41 (1868); Knoxville v. Africa, 77 F. 501, 1896 U.S. App. LEXIS 2264 (6th Cir. 1896); Municipal Trust Co. v. Johnson City, 116 F. 458, 1902 U.S. App. LEXIS 4353 (6th Cir. Tenn. 1902), cert. denied, Johnson City v. Municipal Trust Co., 194 U.S. 636, 24 S. Ct. 859, 48 L. Ed. 1161, 1904 U.S. LEXIS 805 (1903).

2. Liability for Debts.

The creation of a new corporation by the purchasers of the property and franchises of the old corporation, or the voluntary organization of a partnership or association of such purchasers under the name of the old corporation, will not render the new entity liable for the debts of the old corporation or entity. Memphis Water Co. v. Magens & Co., 83 Tenn. 37, 1885 Tenn. LEXIS 15 (1885); Bristol Bank & Trust Co. v. Jonesboro Banking & Trust Co., 101 Tenn. 545, 48 S.W. 228, 1898 Tenn. LEXIS 103 (1898).

3. Change of Name.

The mere change of the name of an existing corporation, either simply or by way of consolidation with another corporation, will not affect the liabilities of the corporation. Memphis Water Co. v. Magens & Co., 83 Tenn. 37, 1885 Tenn. LEXIS 15 (1885); Bristol Bank & Trust Co. v. Jonesboro Banking & Trust Co., 101 Tenn. 545, 48 S.W. 228, 1898 Tenn. LEXIS 103 (1898).

65-9-108. Privileges and exemption from taxation not transferred.

No franchise, right, power, immunity, or exemption not granted at the time of consolidation by the laws of this state to the railway companies which may form part of such consolidated company shall be given to, transferred to, or conferred upon any such consolidated company, or company or person operating such consolidation of railroads as provided for in this chapter or in any other law of this state; and no exemption from taxation of railroad property and franchises, and capital stock therein, contained in railway charters or other railway laws of this state, shall be transferred to, or conferred upon, such consolidated company, or the property and franchises and capital stock therein, of such consolidation of railroads, or of the property appertaining to and used in the operation of such railroads.

Acts 1877, ch. 72, § 3; Shan., § 1529; Code 1932, § 2604; T.C.A. (orig. ed.), § 65-908.

Cross-References. Waiver of tax exemption, § 65-8-108.

NOTES TO DECISIONS

1. Immunity from Taxation Under Consolidation.

Where the capital stock of both the original Tennessee corporations was exempt from taxation, the capital stock of the united or consolidated companies is also exempt where the statute authorizing the union invests the consolidated company with all the powers and privileges of the old corporations. Tennessee v. Whitworth, 117 U.S. 139, 6 S. Ct. 649, 29 L. Ed. 833, 1886 U.S. LEXIS 1821 (1886).

65-9-109. Consolidation of proposed roads.

  1. It is lawful for any railroad corporation, existing in this state under a general law, that now has under construction, or proposes to construct and operate and maintain, a railroad for the transportation as common carrier of persons and freights, to consolidate with any other railroad corporation that has under construction, or proposes to construct and operate and maintain, another such railroad for the transportation of persons and freights.
  2. The consolidation provided for in subsection (a) shall not have effect until the terms and conditions of the agreement shall have been approved by a majority of the stockholders of each of the consolidating companies at a regular annual meeting, or at a called meeting called for that purpose.
  3. This section shall not apply to corporations whose proposed railroad line or lines shall run parallel to each other, or in any way compete with each other for the transportation of persons and freights from or to the same points, it being the intention to apply this section, and extend the privileges granted, to such corporations as have, or may have, under construction, or propose to construct, such railroad lines as, when consolidated, will form one (1) continuous line, or one will be but an extension of another or others.
  4. This section shall apply to railroads under construction, or proposed to be constructed, which, when completed, are to be connected, and form one (1) continuous line in this or other states; provided, that the part of the road so consolidated lying in this state shall be subject to the jurisdiction of the state in its legislative and judicial departments to the same extent as if no such consolidation had been made.

Acts 1887, ch. 188, §§ 1-4; Shan., §§ 1532-1535; Code 1932, §§ 2605-2608; T.C.A. (orig. ed.), §§ 65-909 — 65-912.

Cross-References. Consolidation of competing or parallel lines unlawful, § 65-6-131.

Chapter 10
Liens on Railroad Property

Part 1
General Provisions

65-10-101. Lien of contractors.

Where any railroad company contracts with any person for the grading of its roadway, the construction or repair of its culverts, bridges, and masonry, the furnishing of cross-ties, the laying of its track, the erection of its depots, platforms, wood or water stations, section houses, machine shops, or other buildings, or for the delivery of material for any of these purposes, or for engineering or superintendence, there shall be a lien upon such railroad, its franchise and property, in favor of the person with whom the railroad company contracts for the performance of the work or the delivery of the materials, to the amount of the debt contracted for such performance or delivery.

Acts 1883, ch. 220, § 1; Shan., § 3570; mod. Code 1932, § 7992; T.C.A. (orig. ed.), § 65-1001.

Cross-References. Lien of subcontractors, laborers, materialmen and other persons, title 65, ch. 10, part 2.

Priority of liens, § 65-10-206.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 55.

NOTES TO DECISIONS

1. Construction.

The mechanic's lien statute does not apply to work done and materials furnished for the construction of a building on the line of a railroad company for use in its business. Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

This chapter differs from, and was intended to serve a purpose other than, that provided by §§ 12-4-201 and 12-4-203. Pittsburg Coal Co. v. Southern Asphalt & Constr. Co., 138 Tenn. 154, 196 S.W. 490, 1917 Tenn. LEXIS 17 (1917).

2. “Railroad Company” Defined.

A corporation chartered to develop a water power which constructs a line of railway primarily to carry its construction materials and incidentally to carry passengers is a railroad company within the statute. Parris v. Tennessee Power Co., 136 Tenn. 198, 188 S.W. 1154, 1916 Tenn. LEXIS 117 (1916).

3. Joint Liability of Railroad and Construction Company.

Both the railroad company and a construction company organized by those who control the railroad company to take the construction contract will be treated as one and both are liable to those so employed. McDonald, Shea & Co. V. Railroad, 93 Tenn. 281, 24 S.W. 252, 1893 Tenn. LEXIS 55 (1893).

4. Negotiation of Notes by Contractor.

Where a contractor with a railroad company has negotiated notes received in part payment of his claim for the construction of the road, he is not first required to take up such notes before obtaining a judgment declaring a lien for his services, but the judgment may provide for their payment out of the sum allowed. McDonald, Shea & Co. V. Railroad, 93 Tenn. 281, 24 S.W. 252, 1893 Tenn. LEXIS 55 (1893).

5. Lienors.

The usual superintendent of a railroad company is not entitled to the lien. McDonald, Shea & Co. V. Railroad, 93 Tenn. 281, 24 S.W. 252, 1893 Tenn. LEXIS 55 (1893).

One who advances the money to pay for rights of way for a railroad company is not entitled to be subrogated to the rights of the persons from whom rights of way were procured, and to have a lien declared upon the rights of way for money expended in procuring the same. McDonald, Shea & Co. V. Railroad, 93 Tenn. 281, 24 S.W. 252, 1893 Tenn. LEXIS 55 (1893).

Assistant engineers are entitled to recoveries and liens against the railroad, upon taking the necessary statutory steps to perfect their liens, where the railroad company was, under its contract with the principal contractor, bound to pay the engineering expenses. Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895).

Person furnishing coal to subcontractor for use, and consumed in operating machinery employed in constructing a railroad, is a lienor. Consolidated Engineering Co. v. Wedow & Myers, Inc., 154 Tenn. 358, 289 S.W. 507, 1926 Tenn. LEXIS 133 (1926).

A contractor who purchases for use in construction work a steam shovel is not entitled to the lien. Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895). But as to the rental value of an instrumentality hired for such use, see, for analogy, Nicks v. W. C. Baird & Co., 165 Tenn. 89, 52 S.W.2d 147, 1931 Tenn. LEXIS 175 (1932).

65-10-102. Duration of contractors' lien.

The lien shall continue in force for six (6) months after the performance of the work or the delivery of the material, and until the termination of any suit commenced within the time for its enforcement.

Acts 1883, ch. 220, § 1; Shan., § 3571; Code 1932, § 7993; T.C.A. (orig. ed.), § 65-1002.

65-10-103. Enforcement of contractors' lien.

This lien may be enforced by a suit against the railroad company in the circuit or chancery court of the county where the work, or some part thereof, was done, or the material, or some part thereof, was delivered.

Acts 1883, ch. 220, § 2; Shan., § 3572; mod. Code 1932, § 7994; T.C.A. (orig. ed.), § 65-1003.

Cross-References. Priority of liens, § 65-10-206.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 59.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

NOTES TO DECISIONS

1. Property in Custody of Court.

No lien is acquired under an attachment made after the court has taken charge of the attached property under a proceeding previously instituted, although its receiver has not taken manual caption. McDonald, Shea & Co. V. Railroad, 93 Tenn. 281, 24 S.W. 252, 1893 Tenn. LEXIS 55 (1893).

65-10-104. Pleadings.

The pleading of the plaintiff or complainant shall set out, with reasonable certainty, the work done or the materials furnished, the amount of indebtedness claimed therefor, and the nature and the substance of the contract, and such suit shall be docketed and conducted as other suits in the court.

Acts 1883, ch. 220, § 2; Shan., § 3573; mod. Code 1932, § 7995; T.C.A. (orig. ed.), § 65-1004.

65-10-105. Lien of subcontractors against contractor.

When any principal contractor, by which is meant one who contracts directly with the railroad companies, shall refuse to pay any subcontractor, mechanic, laborer, or other person employed by the principal contractor for the performance of any of such work or the delivery of materials for the purposes provided for in § 65-10-101, such subcontractor, mechanic, laborer, or other person so employed by the principal contractor may elect to give notice, in writing, to the railroad company, setting out the work done or material furnished, and the amount claimed therefor, and, thereupon, the amount that may be due or owing from the railroad company to the principal contractor, not exceeding the sum claimed, shall be bound and liable, in the hands of the railroad company, for the payment of the amount so claimed, and shall constitute a first lien in favor of the claimant, superior to all other liens upon the company's railroad, and shall continue in force for a period of ninety (90) days from the date of service of such notice, and until the termination of any suit commenced within that time to enforce it.

Acts 1883, ch. 220, § 3; Shan., § 3574; mod. Code 1932, § 7996; T.C.A. (orig. ed.), § 65-1005.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 59.

NOTES TO DECISIONS

1. Subcontractor's Lien.

Liens of subcontractors and furnishers are independent of those of the contractor, and are not dependent upon contractor's having perfected his lien; they are independent of and superior to his lien, and are limited only by the amount due the principal contractor at the time of the service of notice on the railroad company. Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895).

A bill may be treated as one to enforce a subcontractor's lien, where a subcontractor, within the time limited after service of notice of lien on the railroad company, filed a bill against such company, making the principal contractor and all other parties holding liens or mortgages on the road parties, in which bill he claimed a principal contractor's lien, but alleged that, owing to the dealings between the principal contractor and the railroad company, it was doubtful whether the complainant and others engaged in the construction of the road were principal contractors or subcontractors, and asked that their liens be declared first liens, or for such other or different relief as might seem meet. Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895).

The principal contractors filed a bill in behalf of all creditors to establish their lien as principal contractors, and did not dispute the claims of their subcontractors. This did not relieve the latter from proving their liens in statutory manner as against other subcontractors entitled to share in the funds, which are insufficient to pay all. A subcontractor who thus established his lien is entitled to payment in full if the funds admit. McDonald v. Charleston, C. & C. R. Co., 37 S.W. 1034, 1896 Tenn. Ch. App. LEXIS 53 (1896).

2. Contractors with Construction Company.

Where a construction company organized and dominated a railroad company, and received all its assets in consideration of constructing or building a railroad, the railroad company and the construction company are one and the same, the construction company being the mere arm or agency by which the railroad company built the road and floated its stocks and bonds; and, in such case, persons furnishing labor and materials under contract with the construction company for the construction of the railroad are entitled to a mechanic's lien thereon as principal contractors of the railroad company and the construction company jointly, and they are not to be treated as subcontractors and limited in their rights as such. McDonald, Shea & Co. V. Railroad, 93 Tenn. 281, 24 S.W. 252, 1893 Tenn. LEXIS 55 (1893).

3. Fraudulent Judgment of Contractor.

Fraudulent judgment procured by contractor against railroad company is of no evidential force in favor of subcontractors, when their claims are contested by the holders of prior mortgage bonds of the railroad company in a foreclosure suit, although this section provides that the amount due or owing from the railroad company to the principal contractor shall be bound and liable for the payment of subcontractors. Central Trust Co. v. Bridges, 57 F. 753, 1893 U.S. App. LEXIS 2205 (6th Cir. Tenn. 1893); Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895).

Collateral References.

Effect of bankruptcy of principal contractor upon mechanic's lien of a subcontractor, laborer, or materialmen as against owner of property. 69 A.L.R.3d 1342.

65-10-106. Payment into court by railroad.

If, after notice provided for in § 65-10-105, the principal contractor shall bring suit against the railroad company, the latter may relieve itself by paying into court the amount so claimed, and the person giving such notice shall be summoned to contest the matter with the principal contractor, and such judgment be rendered thereon as the right may appear.

Acts 1883, ch. 220, § 3; Shan., § 3575; Code 1932, § 7997; T.C.A. (orig. ed.), § 65-1006.

65-10-107. Enforcement of lien against contractor.

The claim provided for in § 65-10-105 may be enforced against the railroad company, as garnishee, and the principal contractor, as debtor, in such court or before any judge of the court of general sessions of the county having jurisdiction of the amount claimed.

Acts 1883, ch. 220, § 3; Shan., § 3576; mod. Code 1932, § 7998; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 65-1007.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 59.

65-10-108. Lien of laborer or materialman against subcontractor.

If any subcontractor refuses to pay any mechanic, laborer, or other person employed by such contractor, for the performance of any of the work, or the delivery of material for the purposes provided for in § 65-10-101, such mechanic, laborer, or other person so employed by the subcontractor may elect to give notice, in writing, to the principal contractor, setting out the work done or the material furnished, and the amount claimed therefor; and thereupon the amount that may be due or owing from the principal contractor to the subcontractor, not exceeding the amount of the claim, shall be bound and liable in the hands of the principal contractor, for the amount so claimed, for a period of ninety (90) days from the date of the service of notice upon the principal contractor, or the principal contractor's agent or attorney, and until the termination of any suit commenced within that time for the collection of such claim.

Acts 1883, ch. 220, § 4; Shan., § 3577; mod. Code 1932, § 7999; T.C.A. (orig. ed.), § 65-1008.

Cross-References. Lien of subcontractors, laborers, materialmen and other persons, title 65, ch. 10, part 2.

Law Reviews.

Liens — Priority of Conditional Vendor's Lien Over Warehousemen's Lien, 8 Tenn. L. Rev. 202 (1930).

NOTES TO DECISIONS

1. Notice in Declaration.

Count in declaration may operate as notice to the railroad company of the plaintiff's claim of a subcontractor's lien, though the suit is afterwards dismissed by the plaintiff, where the railroad company was brought before the court by the service of process, though previous notice was insufficient. Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895).

65-10-109. Enforcement of lien against subcontractor.

The notice provided for in § 65-10-105 shall operate as a first lien in favor of the claimant upon the amount that may be due from the principal contractor to the subcontractor, and may be enforced against the principal contractor as garnishee and the subcontractor as debtor.

Acts 1883, ch. 220, § 4; Shan., § 3578; mod. Code 1932, § 8000; T.C.A. (orig. ed.), § 65-1009.

65-10-110. Payment into court by principal contractor.

The principal contractor may, upon receiving the notice provided for in § 65-10-105, be relieved, if sued, by paying the sum claimed into court, which payment into court shall discharge the principal contractor from liability to the subcontractor for the amount so paid into court; and thereupon the subcontractor shall be summoned to answer the demand of the claimant, and such judgment shall be rendered thereon as the right may appear.

Acts 1883, ch. 220, § 4; Shan., § 3579; Code 1932, § 8001; T.C.A. (orig. ed.), § 65-1010.

65-10-111. Equipment and rolling stock.

  1. In any written contract of or for the sale of the railroad equipment or rolling stock, deliverable immediately or subsequently at stipulated periods, by the terms of which the purchase money, in whole or in part, is to be paid in the future, it may be agreed that the title to the property so sold or contracted to be sold shall not pass to or vest in the vendee until the purchase money shall have been fully paid, or that the vendor shall have and retain a lien thereon for the unpaid purchase money, notwithstanding delivery thereof to and possession by the vendee; provided, that the terms of credit for the payment of the purchase money shall not exceed fifteen (15) years from the execution of the contract.
  2. In any written contract for the leasing or renting of railroad equipment or rolling stock, it is lawful to stipulate for a conditional sale thereof at the termination of such lease, and to stipulate that the rentals received may, as paid or when paid in full, be applied and treated as purchase money, and that the title of such property shall not vest in such lessee or vendee until the purchase money shall have been paid in full, notwithstanding delivery to and possession by such lessee or vendee, subject, however, to the proviso contained in subsection (a).
  3. Every such contract specified in this section shall be good, valid, and effectual, both in law and equity, against all purchasers and creditors; provided, first, the same shall be acknowledged by the vendee or lessee before some officer authorized by law to take acknowledgments of deeds in the form required as to conveyance of real estate; second, such instrument shall be registered in the office of the register of the county in which, at the time of the execution thereof, is situated the principal office of the vendee or lessee in this state; and third, each locomotive engine or car so sold or contracted to be sold or leased as aforementioned shall have the name of the vendor or lessor, or the assignee of such vendor or lessor, plainly placed or marked on each side thereof, or be otherwise marked so as to indicate the ownership thereof.

Acts 1885, ch. 96, §§ 1-3, 5; 1903, ch. 199, § 1; Shan., §§ 3587-3589; Code 1932, §§ 8009-8011; T.C.A. (orig. ed.), §§ 65-1018 — 65-1020; Acts 1991, ch. 360, § 1.

65-10-112. Priority of judgments for timbers, work, or damages.

No railroad company shall have power to give or create any mortgage or other kind of lien on its railway property in this state, which shall be valid and binding against judgments and decrees, and executions therefrom, for timbers furnished and work and labor done on, or for damages done to persons and property in the operation of its railroad in this state.

Acts 1877, ch. 12, § 3; 1877, ch. 72, § 3; Shan., § 1530; Code 1932, § 2587; T.C.A. (orig. ed.), § 65-1021.

Cross-References. Liability for timber cut, § 29-36-102.

Liability of railroad to taxation, § 65-8-108.

Lien of state for construction of underpass or overpass, priority, § 65-11-109.

Priority of liens of contractors, subcontractors, laborers and materialmen, § 65-10-206.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 54.

NOTES TO DECISIONS

1. Construction.

The statute is a valid and constitutional limitation upon the power of all railroad companies. Railroad corporations cannot, without a law so authorizing it, sell, lease, or mortgage their property; and the general assembly may couple with the grant of those powers such conditions and limitations as it may choose to impose. Frazier v. East T., V. & G. R. Co., 88 Tenn. 138, 12 S.W. 537, 1889 Tenn. LEXIS 38 (1889), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891); Central Trust Co. v. Bridges, 57 F. 753, 1893 U.S. App. LEXIS 2205 (6th Cir. Tenn. 1893); Memphis & S. L. R. Co. v. Union R. Co., 116 Tenn. 500, 95 S.W. 1019, 1906 Tenn. LEXIS 11 (1906); Petition of Walker, 141 Tenn. 281, 209 S.W. 739, 1918 Tenn. LEXIS 88 (1918).

The statute has no other effect than to postpone mortgages and other liens created by the railroad company to claims of the character mentioned. The claims do not constitute liens by virtue of this section. Chattanooga, R. & C. R. Co. v. Evans, 66 F. 809, 1895 U.S. App. LEXIS 2693 (6th Cir. Tenn. 1895); Baltimore Trust & Guarantee Co. v. Hofstetter, 85 F. 75, 1898 U.S. App. LEXIS 2136 (6th Cir. Tenn. 1898); Petition of Walker, 141 Tenn. 281, 209 S.W. 739, 1918 Tenn. LEXIS 88 (1918).

2. Application or Coverage.

The statute applies to the liabilities therein protected, though incurred after the execution of the mortgage. Frazier v. East T., V. & G. R. Co., 88 Tenn. 138, 12 S.W. 537, 1889 Tenn. LEXIS 38 (1889), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891).

The statute applies to all railroad corporations alike, and is not confined to railroad corporations consolidated after its enactment. Frazier v. East T., V. & G. R. Co., 88 Tenn. 138, 12 S.W. 537, 1889 Tenn. LEXIS 38 (1889), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891); Central Trust Co. v. Bridges, 57 F. 753, 1893 U.S. App. LEXIS 2205 (6th Cir. Tenn. 1893).

This section has no extraterritorial force or effect and, in order to come within the provisions of the act, claims must be based upon judgments or decrees issued by the courts of Tennessee for damage done to person or property in the operation of the road in the state of Tennessee, and such claims constitute a lien only upon the property of defendant railroad located in the state of Tennessee. Central Trust Co. v. East Tennessee, V. & G. R. Co., 69 F. 658, 1895 U.S. App. LEXIS 3148 (C.C.D. Ga. 1895).

3. Matters Not Covered.

This statute does not include material furnished and work done, in the creditor's machine shops, upon locomotives, nor railroad supplies, such as tools, spikes, and hardware, nor damages resulting from detention of freight shipped, over the line, unless such damage was occasioned by an actual injury to the property, and unless the same occurred within the state. Chattanooga, R. & C. R. Co. v. Evans, 66 F. 809, 1895 U.S. App. LEXIS 2693 (6th Cir. Tenn. 1895).

4. Mortgage.

The law in force at the time a mortgage is executed, with all the conditions and limitations it imposes, is the law which determines the force and effect of the mortgage. East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891).

A bona fide sale would not be a mortgage or lien, within the terms of this statute, and the title of such a purchaser would be unaffected by the statute. Chattanooga, R. & C. R. Co. v. Evans, 66 F. 809, 1895 U.S. App. LEXIS 2693 (6th Cir. Tenn. 1895); Baltimore Trust & Guarantee Co. v. Hofstetter, 85 F. 75, 1898 U.S. App. LEXIS 2136 (6th Cir. Tenn. 1898).

5. Liability of Railroad.

This statute applies only where the labor and materials are furnished in such manner that the railroad company would be liable to pay the contractor or materialman for them, and not where they are furnished to a principal contractor in his individual capacity, without establishing a lien in the manner prescribed by this chapter, and where the lien does not exist, but judgments are nevertheless fraudulently obtained against the railroad company, this statute will not prevent a court of equity from disregarding such judgments. Central Trust Co. v. Bridges, 57 F. 753, 1893 U.S. App. LEXIS 2205 (6th Cir. Tenn. 1893).

6. —Lessor-Lessee Cases.

The lessee of a railroad holds subject to the liability of the lessor for the right of way; and where the owner of the land has obtained judgment against the lessor for the value of the land appropriated by it for a right of way, and the execution issued on the judgment is returned nulla bona, such owner may obtain an injunction against the use, occupation, and operation of so much of the railroad as is located over his land until such judgment is paid or satisfied. Such landowner is entitled to this relief, notwithstanding the fact that the lessee is holding under the state as lessor, by reason of the fact of the state's holding the road under its statutory mortgage. White v. Nashville & N. R. Co., 54 Tenn. 518, 1872 Tenn. LEXIS 81 (1872).

After a railroad company has, by authority of law, leased the control and management of its road to another company, the lessor does not remain liable for all the torts and contracts of the lessee and is not answerable for injuries to a passenger traveling under contract with the lessee, when such injuries are caused wholly by lessee's negligence in operating the road, and this is true even though the lease does not specially exempt lessor from liability. Arrowsmith v. Nashville & D. R. Co., 57 F. 165, 1893 U.S. App. LEXIS 2756 (C.C.D. Tenn. 1893).

A railroad company is not responsible for negligence in the operation of an engine and the crew by which it was operated were rented to and under the control of another company. Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894).

The provisions of this section apply to all damages done to persons and property accruing in the operation of the railroad by a lessee, or by a receiver operating the road under orders of court. Mercantile Trust Co. v. Tennessee C. R. Co., 286 F. 425, 1922 U.S. Dist. LEXIS 1108 (D. Tenn. 1922).

7. Judgment for Damages.

It is not necessary that the creditor for personal injuries should be a preexisting judgment creditor against the mortgagor corporation to assert his lien against the property in the hands of the corporation purchaser at the sale under the mortgage. Such creditor may obtain his judgment against the mortgagor corporation and enforce the same against the property thereof in the hands of the purchaser in the same suit. Frazier v. East T., V. & G. R. Co., 88 Tenn. 138, 12 S.W. 537, 1889 Tenn. LEXIS 38 (1889), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891).

8. —Parties.

A judgment in a suit in a state court establishing a lien on a railroad under the statute does not bind the trustee under the mortgage or the bondholders of the road who are not made parties to the suit, and cannot operate even as prima facie evidence, where there is not at least a constructive notice to the adverse claimants, requiring them to appear and maintain their rights. Hassall v. Wilcox, 130 U.S. 493, 9 S. Ct. 590, 32 L. Ed. 1001, 1889 U.S. LEXIS 1771 (1889); Central Trust Co. v. Bridges, 57 F. 753, 1893 U.S. App. LEXIS 2205 (6th Cir. Tenn. 1893); Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895).

9. —Priorities.

Persons who convey a right of way directly to a railroad company are entitled to a lien for the purchase price, prior to that of the mortgage bonds of the company. Central Trust Co. v. Bridges, 57 F. 753, 1893 U.S. App. LEXIS 2205 (6th Cir. Tenn. 1893).

Claim for damages against railroad due to loss of goods stored in railroad depot as result of fire was entitled to priority since damage was sustained to property in the operation of the railroad within the meaning of this section. Central Trust Co. v. East Tennessee, V. & G. R. Co., 70 F. 764, 1895 U.S. Dist. LEXIS 84 (D. Tenn. 1895).

Local creditors obtaining judgment against a lessee of a railroad for wages, supplies, or damages for injury to person or property have priority over mortgages as to both the rolling stock and leasehold interest of such lessee in the state of Tennessee; as to other creditors the mortgage lien is superior. Thomas v. Cincinnati, N. O. & T. P. R. Co., 91 F. 195, 1898 U.S. App. LEXIS 2609 (C.C.D. Ky. 1898).

10. — —Receivership Cases.

Complainant cannot acquire a prior right through the instrumentality of a judgment lien pending insolvency proceeding against a railroad company in federal court and while its property was in the hands of a receiver of that court. A judgment creditor had not the right to enforce the lien by requisite sale while the property was so situated. Barnett v. East T., V. & G. R. Co., 48 S.W. 817, 1898 Tenn. Ch. App. LEXIS 114 (1898).

A judgment recovered against a receiver of a railroad company for a wrongful death from negligence in operation of the railroad is prior to receiver's certificates, for the receiver stands in no more favored position as to priority against such judgment than the railroad company itself. Petition of Walker, 141 Tenn. 281, 209 S.W. 739, 1918 Tenn. LEXIS 88 (1918).

A court operating the railroad under direction of its receiver cannot create a priority of lien forbidden by the statute. Petition of Walker, 141 Tenn. 281, 209 S.W. 739, 1918 Tenn. LEXIS 88 (1918).

Claims for damages to person or property growing out of the operation of a railroad by a receiver, although not reduced to judgment, outrank a mortgage, when admitted by the receiver. Mercantile Trust Co. v. Tennessee C. R. Co., 286 F. 425, 1922 U.S. Dist. LEXIS 1108 (D. Tenn. 1922).

11. — —Liquidation of Claim.

The priority for damages to person is not extinguished, but continues as against the mortgage of a railroad corporation, after the amount is agreed upon in compromise and liquidation of the claim and right of action for personal injuries, by way of contract entered into between the railroad company and the injured person. Frazier v. East T., V. & G. R. Co., 88 Tenn. 138, 12 S.W. 537, 1889 Tenn. LEXIS 38 (1889), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891), aff'd, East Tennessee, V. & G. R. Co. v. Frazier, 139 U.S. 288, 11 S. Ct. 517, 35 L. Ed. 196, 1891 U.S. LEXIS 2381 (1891).

12. —Fraudulent Judgment.

A judgment obtained against a railroad through collusion of the claimant and the officers of the railroad, is fraudulent as against the other creditors of the railroad, and is of no evidential force when the claim is later contested by the holders of the prior mortgage bonds of the company, in a foreclosure suit. Central Trust Co. v. Bridges, 57 F. 753, 1893 U.S. App. LEXIS 2205 (6th Cir. Tenn. 1893); Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895).

13. —Foreclosure Sales.

A judgment recovered against a railroad company for personal injuries, after its entire equity of redemption has been extinguished by a foreclosure sale, and after its property and franchises are in the entire possession and control of the purchasing company, as owner, does not constitute a lien thereon. Baltimore Trust & Guarantee Co. v. Hofstetter, 85 F. 75, 1898 U.S. App. LEXIS 2136 (6th Cir. Tenn. 1898).

The lien claimant has no right to recover of the purchaser at mortgage foreclosure sale. Barnett v. East T., V. & G. R. Co., 48 S.W. 817, 1898 Tenn. Ch. App. LEXIS 114 (1898).

14. —Creditors' Proceedings.

Judgment creditor could not recover judgment against purchaser at foreclosure sale of railroad's assets where judgment creditor failed to file claim though he had notice in general creditors proceeding instituted prior to foreclosure sale. Hill v. Southern R. Co., 42 S.W. 888, 1897 Tenn. Ch. App. LEXIS 81 (1897).

In Chattanooga, R. & C.R.R. v. Evans, 66 F. 809, 1895 U.S. App. LEXIS 2693 (6th Cir. 1895), the complaining creditor had actual knowledge of the pendency of the general creditors' proceeding in federal court, but constructive notice suffices. Barnett v. East T., V. & G. R. Co., 48 S.W. 817, 1898 Tenn. Ch. App. LEXIS 114 (1898).

A judgment against an insolvent corporation in circuit court, though case yet pending on appeal, was sufficient basis for intervention in a creditor's proceeding. Barnett v. East T., V. & G. R. Co., 48 S.W. 817, 1898 Tenn. Ch. App. LEXIS 114 (1898).

65-10-113. Lessee holds subject to burdens against lessor.

The lessee of any railroad shall hold such road subject to the liens and liabilities to which it was subject in the hands of the lessor, and be bound for all payments for which the lessor was liable.

Code 1858, § 1123 (deriv. Acts 1857-1858, ch. 8, § 3); Shan., § 1539; Code 1932, § 2609; T.C.A. (orig. ed.), § 65-1022.

Part 2
Subcontractor's Lien Against Railroad

65-10-201. Direct lien against railroad authorized.

Every subcontractor, laborer, materialman, or other person who performs any part of the work in grading any railroad company's roadway, or who constructs or aids in the construction or repairs of its culverts and bridges, or furnishes cross-ties or masonry or bridge timbers for the same, which is used in the building and construction of such railroad, its bridges and culverts, or who lays or aids in the laying of its track, building of its bridges, the erection of its depots, platforms, wood or water stations, section houses, machine shops, or other buildings, or for the delivery of material for any of these purposes, or for any engineering or superintendence, or who performs any valuable service, manual or professional, by which any such railroad company receives a benefit, all and every such person or persons at election shall have a direct lien on such railroad, its franchises and property, for the value of such work and labor done or material furnished or services rendered as set out and specified, in as full and ample a manner as is provided by § 65-10-101, for persons contracting directly with such railroad company for any such work and labor done or for materials furnished.

Acts 1891, ch. 98, § 1; Shan., § 3580; mod. Code 1932, § 8002; T.C.A. (orig. ed.), § 65-1011.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mechanics' Liens, § 12; 21 Tenn. Juris., Railroads, § 55.

Law Reviews.

Creditor's Rights and Security Transactions — 1956 Tennessee Survey (Paul J. Hartman), 9 Vand. L. Rev. 965 (1956).

NOTES TO DECISIONS

1. Construction.

The original statute compiled in §§ 65-10-10165-10-110 must be read as if it contained the provisions of the amendatory statute compiled in this part as to all authorized actions occurring after the enactment of the amendatory statute. Noll & Thompson v. Cumberland P. R. Co., 112 Tenn. 140, 79 S.W. 380, 1903 Tenn. LEXIS 94 (1904).

The provisions of this part are to be liberally construed in favor of the laborer or materialman. Hercules Powder Co. v. Knoxville, L. & J. R. Co., 113 Tenn. 382, 83 S.W. 354, 1904 Tenn. LEXIS 32, 106 Am. St. Rep. 836, 67 L.R.A. 487 (1904); S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907); Williams v. Birmingham & N. W. R. Co., 129 Tenn. 680, 168 S.W. 160, 1914 Tenn. LEXIS 159 (1914); Parris v. Tennessee Power Co., 136 Tenn. 198, 188 S.W. 1154, 1916 Tenn. LEXIS 117 (1916).

2. Legislative Purpose.

The purpose of this statute was to extend the lien previously given to a principal contractor to subcontractors and others. Consolidated Engineering Co. v. Wedow & Myers, Inc., 154 Tenn. 358, 289 S.W. 507, 1926 Tenn. LEXIS 133 (1926).

3. Lienable Items.

The bookkeeper for a railroad bridge contractor and the cook's assistants, employed by him for the bridge gang, are within the statute, and entitled to have a lien declared for the value of their labor and services. Bladen v. Railroad, 97 Tenn. 392, 37 S.W. 135, 1896 Tenn. LEXIS 157 (1896).

Explosives furnished to a subcontractor, under contract, to be used in blasting rock in the construction of a tunnel and in grading, and so used, are materials for which the furnisher is entitled to a lien. Hercules Powder Co. v. Knoxville, L. & J. R. Co., 113 Tenn. 382, 83 S.W. 354, 1904 Tenn. LEXIS 32, 106 Am. St. Rep. 836, 67 L.R.A. 487 (1904); S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907).

Furnishing to a subcontractor dynamite, fuse, blasting wire, wire fuse, nails, nuts, washers, bolts, soft steel and iron, which went into the construction of railroad tunnel, gave right to a lien. S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907).

A lien arises for work in constructing a railway building on the line of a railroad company. Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

A furnisher of lumber to a subcontractor for use in making molds for concrete culverts, furnishes “materials” used in the culverts, within the meaning of this statute, where such lumber was practically consumed in the work and construction of the culverts. Cohn & Goldberg v. Walker Const. Co., 131 Tenn. 445, 175 S.W. 536, 1914 Tenn. LEXIS 120 (1915).

One who furnishes coal to a subcontractor, which coal is used by the subcontractor in the operation of steam shovels and other machinery employed in removing earth and rock in constructing a railroad, is entitled to a lien under this section. Consolidated Engineering Co. v. Wedow & Myers, Inc., 154 Tenn. 358, 289 S.W. 507, 1926 Tenn. LEXIS 133 (1926).

This section creates a lien against railroad property for rental of heavy earth moving equipment used by subcontractor in making improvements to railroad property. R. L. Harris, Inc. v. Cincinnati, N. O. & T. P. R. Co., 198 Tenn. 339, 280 S.W.2d 800, 1955 Tenn. LEXIS 378 (1955).

4. Nonlienable Items.

A materialman is not entitled to a lien for materials furnished to a railroad subcontractor, for the erection of shanties, on leased land adjacent to the railroad right of way, for the shelter of his workmen. S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907).

A materialman is not entitled to a lien for gasoline, gasoline torches, and coal oil, used for lighting a railroad tunnel while in process of construction, nor for packing, cotton waste, electric light supplies, carts, tools, mattocks, shovels, spades, blacksmith tools, wagons, scrapers, plows, machines, machinery, derricks, derrick crabs, cables and repairs for all these. S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907).

There is no lien under this statute for tableware and commissary supplies furnished to a railroad subcontractor and materials furnished to the workmen in part payment for their labor. S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907).

This section does not create a lien against railroad property for repair and replacement of parts and machinery used by subcontractor in making improvements to railroad property. R. L. Harris, Inc. v. Cincinnati, N. O. & T. P. R. Co., 198 Tenn. 339, 280 S.W.2d 800, 1955 Tenn. LEXIS 378 (1955).

5. Material Furnished but Not Used.

A materialman has a lien for materials furnished in good faith to a subcontractor, to be used in the construction or repair of a certain railroad, although such materials are not actually used for that purpose. Hercules Powder Co. v. Knoxville, L. & J. R. Co., 113 Tenn. 382, 83 S.W. 354, 1904 Tenn. LEXIS 32, 106 Am. St. Rep. 836, 67 L.R.A. 487 (1904); S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907); Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

6. Principal Contractor's Debt.

Fraudulent judgment procured by contractor against railroad company is of no evidential force in favor of subcontractors when their claims are contested by the holders of prior mortgage bonds of the railroad company in a foreclosure suit, although § 65-10-105 provides that the amount due from the railroad to the principal contractor shall be bound and liable for the payment of subcontractors. Central Trust Co. v. Bridges, 57 F. 753, 1893 U.S. App. LEXIS 2205 (6th Cir. Tenn. 1893); Central Trust Co. v. Condon, 67 F. 84, 1895 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1895).

This chapter gives subcontractors, furnishers, and laborers a lien regardless of the amount the railroad company may be indebted to the principal contractor. Noll & Thompson v. Cumberland P. R. Co., 112 Tenn. 140, 79 S.W. 380, 1903 Tenn. LEXIS 94 (1904). See Consolidated Engineering Co. v. Wedow & Myers, Inc., 154 Tenn. 358, 289 S.W. 507, 1926 Tenn. LEXIS 133 (1926).

A receiver for a railroad contractor cannot recover from the railroad company which used the contractor's equipment, after he abandoned the contract, both the rental value of the use of the equipment and the decreased market value. Johnston v. Cincinnati, N. O. & T. P. R. Co., 146 Tenn. 135, 240 S.W. 429, 1921 Tenn. LEXIS 10 (1921).

65-10-202. Notice to secure lien.

To secure this direct lien, such subcontractor, laborer, materialman, or other person rendering the labor or service, shall, within ninety (90) days after such work and labor is done or completed, or such materials are furnished, or such services are rendered, notify, in writing, any such railroad company, or the owners of such railroad, should it or they reside in the state, or its or their agents or attorneys, should it or they be beyond the limit of the state, that the lien is claimed, specifying in the face of the notice the character of the work and labor done or services rendered, or materials furnished, and the value of such labor, services or materials.

Acts 1891, ch. 98, § 1; Shan., § 3581; mod. Code 1932, § 8003; T.C.A (orig. ed.), § 65-1012.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 58.

NOTES TO DECISIONS

1. Notice.

Where a materialman agrees with a subcontractor to furnish him all the materials required for the construction of a railroad, which are furnished and delivered, pursuant to the contract, as and when needed and required by the purchaser, the contract is an entirety, and a notice within 90 days from the date of the last delivery secures the lien on all the deliveries. Hercules Powder Co. v. Knoxville, L. & J. R. Co., 113 Tenn. 382, 83 S.W. 354, 1904 Tenn. LEXIS 32, 106 Am. St. Rep. 836, 67 L.R.A. 487 (1904).

The prescribed written notice to the railroad company within the 90 days is an essential prerequisite to the protection and enforcement of the lien. P. H. Norman & Co. v. Edington, Groner & Griffiths, 115 Tenn. 309, 89 S.W. 744, 1905 Tenn. LEXIS 64 (1905).

The notice must be given by the subcontractors, laborers, or materialmen themselves; and the assignee of claims for work and labor done cannot obtain the benefit of the lien where their assignors have failed to give the required notice to the railroad company, although, subsequent to the assignment, and within the statutory period, the assignees themselves have given the notice to the railroad company of their intention to claim the lien as such assignees. P. H. Norman & Co. v. Edington, Groner & Griffiths, 115 Tenn. 309, 89 S.W. 744, 1905 Tenn. LEXIS 64 (1905).

2. Waiver of Defects in Notice.

The defects in a subcontractor's notice to a railroad company of his lien, or the absence of such notice, may be waived; the same is waived by a failure to make an objection or defense in the court below. The objection cannot be made for the first time on appeal. Noll & Thompson v. Cumberland P. R. Co., 112 Tenn. 140, 79 S.W. 380, 1903 Tenn. LEXIS 94 (1904); S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907).

3. Running of Statute.

The fact that the last shipment of materials to a subcontractor was stopped in transitu, because of the purchaser's insolvency and abandonment of the construction contract, does not affect the seller's lien for the materials previously furnished by him to such subcontractor, though furnished more than 90 days prior to the notice of the claim of a lien, where such notice is given within ten days after such failure of the subcontractor, and his consequent breach of the contract. Hercules Powder Co. v. Knoxville, L. & J. R. Co., 113 Tenn. 382, 83 S.W. 354, 1904 Tenn. LEXIS 32, 106 Am. St. Rep. 836, 67 L.R.A. 487 (1904); Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

The right of the furnisher, under a contract for materials to be used in constructing a machine shop for a certain railroad company, to fix his lien for the materials so furnished, 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 the notice thereof will begin to run from the date of the delivery of the last material. Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

Where a materialman furnishes material to be used in constructing a railroad machine shop, part of which the railroad company's inspector rejected as defective, the fact that the materialman thereafter furnished material to be used in the place of the alleged defective material, and so used, did not extend the time for his acquiring a lien for his material previously furnished under the original contract, but the time for acquiring such lien began to run from the delivery of the last material under original contract. Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910). But see Harrison v. Knafle, 128 Tenn. 329, 161 S.W. 1003, 1913 Tenn. LEXIS 52 (1913).

65-10-203. Duration of lien.

Such lien shall continue for the space of one (1) year from the service of the notice, and until the termination of any suit, commenced for the enforcement within one (1) year; and the lien shall have priority over all other liens on such railroad, its property and franchises.

Acts 1891, ch. 98, § 1; Shan., § 3582; mod. Code 1932, § 8004; T.C.A. (orig. ed.), § 65-1013.

65-10-204. Jurisdiction to enforce lien.

The liens provided for in § 65-10-201 may be enforced by suit brought against such railroad company in the circuit or chancery court of the county where the work or material, or any part thereof, was done or furnished, or any part of the services was rendered.

Acts 1891, ch. 98, § 2; Shan., § 3583; Code 1932, § 8005; T.C.A. (orig. ed.), § 65-1014.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

NOTES TO DECISIONS

1. Jurisdiction.

The jurisdictional remedy given is not exclusive of other remedies, and the lien claimant is given an additional remedy by authorizing suit to be brought in the county or district where the work or some part thereof is done, or the material is furnished. It is not the purpose to forbid suit in a county where the principal office of the railroad company is situated and in which a material part of its line of railway is located, although such county may not be the county in which the work was done or the material furnished. Williams v. Birmingham & N. W. R. Co., 129 Tenn. 680, 168 S.W. 160, 1914 Tenn. LEXIS 159 (1914).

2. Parties.

In a suit by a materialman founded on a claim, not adjudicated, for materials furnished a subcontractor, the subcontractor is a necessary party; and failure to join him is not waived by the railroad company answering to the merits, without raising the question of nonjoinder. S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907).

Where a second subcontractor under a first subcontractor brought suit to enforce a lien, and alleged an indebtedness from the principal contractor to the first subcontractor, and alleged that the state of accounts between them (the railroad and the principal contractor), on the one hand, and complainant and the first subcontractor, on the other hand, was open, the principal contractor was at least a proper party. Williams v. Birmingham & N. W. R. Co., 129 Tenn. 680, 168 S.W. 160, 1914 Tenn. LEXIS 159 (1914).

65-10-205. Pleadings.

The declaration or bill, as the case may be, of a plaintiff or complainant shall set out with reasonable certainty, the work done, services rendered, or materials furnished, the amount claimed therefor, the nature and substance of any contract made with such railroad company, or any contractor or construction company, or subcontractor, as the case may be, accompanying such declaration or bill with a copy of the notice, executed as required in § 65-10-202.

Acts 1891, ch. 98, § 3; Shan., § 3584; mod. Code 1932, § 8006; T.C.A. (orig. ed.), § 65-1015.

NOTES TO DECISIONS

1. Description of Property.

A materialman's lien may be enforced in chancery, without attachment of the property sought to be subjected, by a bill framed in strict conformity with the statute creating the lien, with a description of the property, sufficiency of which is not questioned in the answer, and resulting in a decree declaring the lien upon the property by substantially the same description. S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907).

The bill must, in the absence of an attachment, describe the property with sufficient definiteness to identify it and segregate it as the property upon which the lien is claimed. Williams v. Birmingham & N. W. R. Co., 129 Tenn. 680, 168 S.W. 160, 1914 Tenn. LEXIS 159 (1914).

65-10-206. Priority of lien.

No railroad company shall have power to give or create any mortgage or other kind of lien on its railroad, its property or franchises, in this state, which shall be valid and binding against any judgments or decrees, or execution issued thereon, rendered in any of the courts in this state, for the enforcement of any liens provided for in this chapter; nor shall the liens created by § 65-10-201 be hindered, postponed, delayed or defeated by any contract, real or pretended, made by any railroad company with any principal or construction company, real or pretended.

Acts 1891, ch. 98, § 4; Shan., § 3585; Code 1932, § 8007; T.C.A. (orig. ed.), § 65-1016.

Cross-References. Lien of state for construction of overpass or underpass, priority, § 65-11-109.

Priority of judgments for timbers, work, or damages to person or property over other liens, § 65-10-112.

Sale of property and franchise under judgment, § 65-8-107.

NOTES TO DECISIONS

1. Construction.

This section does not create a lien but postpones those liens created by a railroad company to claims of a preferred class. Petition of Walker, 141 Tenn. 281, 209 S.W. 739, 1918 Tenn. LEXIS 88 (1918).

2. Statutory Priority.

A court, operating a railroad through its receiver, cannot create a priority of lien not recognized by the statute. Petition of Walker, 141 Tenn. 281, 209 S.W. 739, 1918 Tenn. LEXIS 88 (1918).

3. Failure to Assert Priority.

One who held a potential preference may not avail of it after there has been a general creditors' proceeding and a sale of the railway property, in which proceeding the claimant had reasonable opportunity to present his claim but did not even though in such proceeding a mortgage on the railway property was foreclosed. Hill v. Southern R. Co., 42 S.W. 888, 1897 Tenn. Ch. App. LEXIS 81 (1897).

65-10-207. Indemnity bond — Judgment by motion.

Any such railroad company shall have the right to demand from any principal contractor or construction company an indemnity or refunding bond to protect it in case of the enforcement of the liens created by § 65-10-201; and in case any original contractor or construction company is paid for work done or material furnished, or any part of it, covered by this part, and such original contractor or construction company should fail to pay any subcontractor, laborer, or materialman, for work done or material furnished, as specified in § 65-10-201, then, upon the payment of such subcontractor, laborer, or materialman of the amount due, such railroad company shall have judgment, by motion, for such amount so paid on such bond in court; but any contractor or construction company shall have the right to intervene and contest the claim of such subcontractor, laborer, or materialman claiming to be employed by such contractor or construction company.

Acts 1891, ch. 98, § 5; Shan., § 3586; mod. Code 1932, § 8008; T.C.A. § 65-1017.

Chapter 11
Highway Crossings

65-11-101. Construction and repair.

  1. All persons, or corporations, owning or operating a railroad in this state, are required to make and furnish good and sufficient crossings on the public highways crossed by them, and keep such crossings in lawful repair at their own expense.
    1. Subsection (a) shall not preclude construction, reconstruction, improvement or repair of crossings, through financial participation of the state or local government with a railroad authority established by law, when accomplished by contract with an independent contractor, or when such work will be performed by employees of a local government acting under direct supervision and total control of a railroad authority or its agent.
    2. For liability purposes, when employees of a local government are working under the control of a railroad authority, such employees shall not be treated as employees of the local government, but instead shall be treated as employees of the railroad authority exercising control of the employees.
    1. Notwithstanding subsections (a) or (b) to the contrary, after July 1, 2001, no public railroad grade crossing shall be constructed and no private crossing shall be converted to a public crossing without the entity desiring the crossing or the conversion having first:
      1. Submitted the plans for the construction or conversion of the proposed crossing to the department of transportation; and
      2. Obtained the department of transportation's approval of those plans. Prior to rendering its final decision, the department of transportation shall submit the plans it proposes to approve to the federal highway administration, the affected local government, and the involved railroad for review and comment. Any entity desiring the construction or conversion of a crossing shall be responsible for all costs associated with constructing or converting such crossing in compliance with the plans approved by the department of transportation. No public railroad grade crossing constructed after July 1, 2001, and no private crossing converted to a public crossing after July 1, 2001, shall be opened to vehicular traffic until such crossing is inspected by the department of transportation to assure that the crossing was constructed or converted in accordance with the approved plans.
    2. The department of transportation shall promulgate standards pertaining to the construction or conversion of grade crossings pursuant to this subsection (c) including, but not limited to, appropriate warning devices. The department of transportation shall not approve any plans for construction or conversion of a railroad grade crossing that do not comply with the promulgated standards.
    3. The department of transportation shall charge a fee for the review and approval of plans for construction or conversion of railroad crossings and the inspection of the completed crossings. Such fee shall be sufficient to offset the cost to the department of transportation of performing these services. Such fee shall be paid by the party seeking approval of the plans for the crossing.
    4. The department of transportation shall promulgate rules and regulations pertaining to the approval of plans for construction or conversion of railroad grade crossings and the inspection of those crossings pursuant to this subsection (c).
    5. Upon receipt of an application for approval of plans pursuant to this subsection (c), the department of transportation shall notify the affected railroad and the governmental body having jurisdiction over the proposed location.
    6. If a crossing is constructed or converted in violation of this subsection (c), the affected railroad may remove the crossing and recover the cost of such removal from the party that constructed or converted the crossing.
      1. It is the intent of the general assembly that the standards, rules and regulations promulgated pursuant to this subsection (c) shall not be applied for any reason whatsoever to any railroad crossings established prior to July 1, 2001, except for the sole purpose of evaluating such railroad grade crossings for possible closure.
      2. It is the intent of the general assembly that the standards, rules and regulations promulgated by the department of transportation pursuant to this subsection (c) shall take effect on or before March 1, 2002.

Acts 1889, ch. 119, § 1; Shan., § 1593; Code 1932, § 2657; T.C.A. (orig. ed.), § 65-1101; Acts 1990, ch. 733, § 1; 2001, ch. 315, § 1; 2002, ch. 536, §§ 1, 2.

Cross-References. Costs of street improvements, §§ 7-32-1117-32-114.

Crossing public roads, signals, § 65-12-108.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 471.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles and Other Vehicles, § 12; 21 Tenn. Juris., Railroads, §§ 1, 21, 41.

Law Reviews.

Railroad Tort Liability: A Symposium — Liability Aspects of Non-F. E. L. A. Litigation, 25 Tenn. L. Rev. 125 (1958).

Torts — Intervening Cause — Pedestrian Injured by Motorist on Narrow Railroad Bridge, 27 Tenn. L. Rev. 629 (1960).

NOTES TO DECISIONS

1. Legislative Purpose.

By legislation of this character it was the intention to require railroads to construct and keep in repair good and sufficient crossings where the tracks of the company are crossed by a public road, the purpose being to make such crossings easy of approach and as safe as possible in cases of emergency. Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

2. Duty to Construct and Maintain Crossing.

The phrase “good and sufficient crossing” means one suitable for the ordinary exigencies of travel upon the road at that particular place. Louisville & N. R. Co. v. Evins, 13 Tenn. App. 57, — S.W.2d —, 1930 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1930).

The common law required a railroad to erect and maintain such a crossing as convenience and safety required, and this is the extent of the company's obligation under this section. Louisville & N. R. Co. v. Evins, 13 Tenn. App. 57, — S.W.2d —, 1930 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1930).

Under this section a railroad company is required to keep its crossing in a reasonably safe condition for public travel, the railroad not being an insurer against accidental injury or death. Louisville & N. R. Co. v. Evins, 13 Tenn. App. 57, — S.W.2d —, 1930 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1930).

Where railroad was charged with negligence in maintenance of crossing, and evidence justified verdict against defendant, it was immaterial whether railroad was also guilty of violation of duties at “designated crossing” imposed by § 65-12-108. Powers v. L. & N. R. Co., 183 Tenn. 526, 194 S.W.2d 241, 1946 Tenn. LEXIS 233 (1946).

Violation of this section does not create an additional cause of action for damages arising out of an accident at a railroad crossing, but merely presents an additional ground of negligence. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

While a municipality is under a duty to the public to maintain its streets in a reasonably safe repair, nevertheless railroads having a right of way upon and across such streets have a common law duty to keep in repair so much and such parts of these streets as may be under the control of the railroad and necessary for its operation. Southern R. Co. v. Maples, 201 Tenn. 85, 296 S.W.2d 870, 1956 Tenn. LEXIS 469 (1956).

This section has application even though the highway bridge crossed over a preexisting railroad. Atlantic C. R. Co. v. Smith, 264 F.2d 428, 1959 U.S. App. LEXIS 4318 (6th Cir. Tenn. 1959).

The fact that railroad crossing was located within the corporate limits of a city did not relieve the railroad of its duty to keep the crossing in proper order. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

Where public had free access to and use of road maintained by county, road was “public” within meaning of Tennessee law and statutes concerning railroad crossings on public highways or public roads, and railroad was liable for wrongful death if it resulted from railroad's negligence in failing to maintain crossing. Outlaw v. Louisville & N. R. Co., 448 F.2d 1284, 1971 U.S. App. LEXIS 7838 (6th Cir. Tenn. 1971).

3. Obstruction of Crossing.

Under the common law, a railroad company can be indicted for obstructing a public crossing, but the indictment or presentment must conclude “to the common nuisance.” Southern R. Co. v. State, 141 Tenn. 133, 207 S.W. 724, 1918 Tenn. LEXIS 74 (1918).

4. Closing of Crossing.

The question of whether a railway company had a duty to keep a grade crossing in good repair was irrelevant in an action concerning whether the company could be compelled to keep a grade crossing open. Scott County v. Cincinnati, N. O. & Tex. Pac. Ry., 915 F. Supp. 928, 1995 U.S. Dist. LEXIS 20364 (E.D. Tenn. 1995).

5. Street Railways.

A street railroad company is bound, under the common law, to keep its entire roadbed, to the ends of its ties, and its crossings, in repair, so as not to obstruct travel across its road or longitudinally upon it, and this duty is a continuing one, whether the charter so expressly requires it or not. Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889).

A street railroad company failing to repair its roadbed, and thereby obstructing travel, is indictable for maintaining a nuisance, and, upon failure to abate the nuisance, the obstructions may be removed by order of the court, after a conviction under the indictment. Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889).

Misled the jury into the conclusion that, if the defendant was guilty of any negligence, its liability would follow without regard to the plaintiff's concurrent negligence. Nashville R. & L. Co. v. Dungey, 128 Tenn. 587, 163 S.W. 802, 1913 Tenn. LEXIS 73 (1913).

Collateral References.

Constitutional power to compel railroad company to relocate or reconstruct highway crossing or to pay or contribute to expense thereof. 55 A.L.R. 660, 62 A.L.R. 815, 109 A.L.R. 768.

Federal control as affecting statutory duty to maintain bridge. 19 A.L.R. 693, 52 A.L.R. 296.

Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection. 22 A.L.R.4th 624.

Liability of municipality for injury due to condition of part of street occupied by street railway. 54 A.L.R. 1291.

Liability of street railway company for injury due to condition of part of street occupied by street railway. 54 A.L.R. 1291.

Piers, pillars, or abutments within street or highway, at crossing, right of railroad to construct and maintain. 62 A.L.R. 1519.

Prohibition to control action of administrative officers as to construction of railroad crossing or viaduct. 115 A.L.R. 23, 159 A.L.R. 627.

Railroad company's liability for injury or death of pedestrian due to condition of surface of crossing. 64 A.L.R.2d 1199.

Railroad's liability to owner or occupant of motor vehicle for accident allegedly resulting from defective condition of road surface at crossing. 91 A.L.R.2d 10.

Stone or other object on surface of highway thrown by or from passing vehicle, liability for injury to person or damage to property caused by. 115 A.L.R. 1500.

Street railway company's liability for injury by defect in highway to person approaching to board streetcar. 75 A.L.R. 294.

65-11-102. Noncompliance with § 65-11-101 — Penalty.

A failure to observe and fully comply with § 65-11-101 shall subject the offender to a fine of not less than ten dollars ($10.00) nor more than one hundred dollars ($100).

Acts 1889, ch. 119, § 2; Shan., § 1594; mod. Code 1932, § 2658; Acts 1975, ch. 103, § 1; T.C.A. (orig. ed.), § 65-1102.

NOTES TO DECISIONS

1. Construction.

The effect of the proviso of this section is only to relieve a railroad from criminal liability and does not relieve the railroad of its common-law obligation to the traveling public to maintain and repair railroad crossings within cities and towns, and the railroad is liable in civil action for damages to a person injured as a proximate result of its failure to perform such duty. Southern R. Co. v. Maples, 201 Tenn. 85, 296 S.W.2d 870, 1956 Tenn. LEXIS 469 (1956).

65-11-103. Construction, maintenance and repair.

Every corporation or person operating a line of railroad within the state is required to maintain or construct to a plane with the rails of the railroad and to keep in repair every public road crossing of such railroad for a distance of ten feet (10') on each side of such railroad track and between the rails thereof. Where superelevated track or tracks or other physical conditions make strict compliance with this section impractical, the plane shall be constructed so as to provide the best vertical alignment under the circumstances with due regard to surface regularity. Nothing in this section is intended to change judicial interpretations of predecessor sections with respect to a railroad's obligation to keep in repair necessary crossing approaches beyond ten feet (10') on each side of such railroad tracks.

Acts 1899, ch. 356, § 1; Shan., § 1594a1; mod. Code 1932, § 2660; Acts 1975, ch. 103, § 2; T.C.A. (orig. ed.), § 65-1103; Acts 1992, ch. 1005, § 1.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 21.

Law Reviews.

Look Out Ahead — Tennessee Grade Crossings, 23 Tenn. L. Rev. 865 (1955).

NOTES TO DECISIONS

1. Construction.

The statute is supplementary of and auxiliary to the older statute compiled in §§ 65-11-101, 65-11-102, and does not, by implication, repeal or suspend it. The later statute adds to the broadly stated requirement in the former statute a specification defining how a particular part of the crossing shall be constructed. Louisville & N. R. Co. v. State, 128 Tenn. 172, 159 S.W. 601, 1913 Tenn. LEXIS 36 (1913); Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

This statute requires the railroad to make the public road at a railroad crossing level for the distance of 10 feet on each side of the rails, and between the rails, and to keep the same in repair, and is not complied with by merely bringing the public roadway to a level with the rails at the point of contact with the rails. Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

2. Grade.

“Grading” includes filling as well as cutting, and technically means the reducing of the earth's surface to a given line fixed as the grade, and may include filling or excavating, or both. Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

The term “grade,” when used in reference to streets, has two distinct meanings; and, by the first meaning, it signifies the line of the street's inclination from the horizontal; and, by its second meaning, it signifies a part of the street inclined from the horizontal; that is, it sometimes signifies the line established to guide future construction, and at other times, the street wrought to the line; and when the term “grade” is used in a decree laying out a street of a certain width, and prescribing the grade along its center line, refers to the physical condition of the street when its construction is complete. Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

3. “Crossing” Defined.

The word “crossing,” as applied to the intersection of a common highway and a railroad, means the entire structure, including the necessary approaches, though a part may be outside of the railroad's right of way. Louisville & N. R. Co. v. State, 128 Tenn. 172, 159 S.W. 601, 1913 Tenn. LEXIS 36 (1913); Louisville & N. R. Co. v. State, 137 Tenn. 341, 193 S.W. 113, 1916 Tenn. LEXIS 80 (1917).

Negligence in failing to maintain a sufficient crossing does not render railroad company liable when driver of truck was guilty of contributory negligence in attempting to cross in front of an approaching train observed by him or that should have been seen. Cincinnati, N. O. & T. P. R. Co. v. Galloway, 59 F.2d 664, 1932 U.S. App. LEXIS 3439 (6th Cir. Tenn. 1932).

65-11-104. Noncompliance with § 65-11-103 — Misdemeanor.

The failure of any such person to comply with the requirements of § 65-11-103 is a Class C misdemeanor.

Acts 1899, ch. 356, § 2; Shan., § 1594a2; Code 1932, § 2661; T.C.A. (orig. ed.), § 65-1104; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

NOTES TO DECISIONS

1. Construction of Road Across Highway.

A railroad company, in constructing its road over or across a public highway, must, if possible, construct its road without any inconvenience to the public; but if it cannot be done without some inconvenience, it must be done with the least possible inconvenience. If a bridge or substituted road be necessary to prevent the obstruction, the railroad company must build it immediately or in a reasonable time, and cannot delay it until its road is completed. The company must so use its own rights as not to injure or take away the rights of others. These are the rules under the common law, and the established rules, whether the obstruction of the highway be expressly prohibited in the charter or general statutes. Louisville & N. R. Co. v. State, 40 Tenn. 523, 1859 Tenn. LEXIS 150 (1859); Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943, 1889 Tenn. LEXIS 21 (1889); Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889); Harriman v. Southern Ry., 111 Tenn. 538, 82 S.W. 213, 1903 Tenn. LEXIS 44 (1903).

The railroad company and its successors must, if not relieved by statute, not only restore the public road, but must erect and maintain perpetually all structures and keep up all repairs made necessary by such crossing, for the safety and convenience of public travel. Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943, 1889 Tenn. LEXIS 21 (1889); Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889); Harriman v. Southern Ry., 111 Tenn. 538, 82 S.W. 213, 1903 Tenn. LEXIS 44 (1903); Louisville & N.R.R. v. United States Iron Co., 118 Tenn. 194, 101 S.W. 414, 1906 Tenn. LEXIS 90 (Tenn. Dec. 1906); City of Chattanooga v. Southern Ry., 128 Tenn. 399, 161 S.W. 1000, 1913 Tenn. LEXIS 57 (1913).

2. Obstruction of Public Highway.

Railroad companies are indictable for obstructing public roads, highways, and streets. Louisville & N. R. Co. v. State, 40 Tenn. 523, 1859 Tenn. LEXIS 150 (1859); Memphis, P. P. & B. R. Co. v. State, 87 Tenn. 746, 11 S.W. 946, 1889 Tenn. LEXIS 23 (1889); State v. Railroad, 91 Tenn. 445, 19 S.W. 229, 1892 Tenn. LEXIS 12 (1892).

The acquittal of the railroad company of the criminal charge of maintaining a nuisance in the public road at its crossing is not available, as res judicata, in a suit by the county to recover of the railroad company the costs of removing the obstruction constituting the nuisance, by rebuilding a dilapidated and dangerous bridge for the county road crossing over the railroad. Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943, 1889 Tenn. LEXIS 21 (1889).

3. Recovery by County for Rebuilding Bridge.

When the railroad company fails or refuses to perform its duty touching structures and repairs at its intersection with a public road, the county may have the work done and recover the reasonable costs thereof from the railroad company. The railroad company will be liable to the county for a new bridge erected by county, shown to be such as the necessities of public travel demand, and substantially the same as the one originally erected by the company, though not exactly the same structure that the company would have erected had it undertaken the task. Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943, 1889 Tenn. LEXIS 21 (1889).

65-11-105. Form of railroad crossing sign.

The commissioner of transportation or the commissioner's designee, after conducting such hearing as is deemed appropriate, is empowered and directed to determine a standard railroad crossing sign for the state.

Acts 1921, ch. 41, § 2; Shan. Supp., § 1593a1; mod. Code 1932, § 2659; impl. am. Acts 1955, ch. 69, § 1; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 65-1105; Acts 1995, ch. 305, § 25.

Compiler's Notes. Acts 1995, ch. 305, § 44 provided:

“(a)  Notwithstanding any provision of law to the contrary, upon the effective date of this section [July 1, 1995] all employees of the public service commission charged with the responsibility of regulating and enforcing the provisions of Tennessee Code Annotated, Title 65, Chapter 3, and Chapter 5, Part 1 (repealed), and Chapters 11 and 12, and any other employees of the public service commission necessary to assist in such regulating and enforcing, shall be transferred to the department of transportation, created by Tennessee Code Annotated, Section 4-3-101.

“(b)  All reports, documents, surveys, books, records, papers or other writings in the possession of the public service commission with respect to administering the provision of Title 65, assigned to the department of transportation by this act, shall be transferred to and remain in the custody of the department of transportation.

“(c)  All leases, contracts and all contract rights and responsibilities in existence with the public service commission with respect to the duties transferred by this section shall be preserved and transferred to the department of transportation.

“(d)  All assets, liabilities and obligations of the public service commission with respect to the duties transferred by this section shall become the assets, liabilities and obligations of the department of transportation.

“(e)  Any revenues from rates, fares, charges, fines, and other moneys received pursuant to Tennessee Code Annotated, Title 65, Chapter 12, shall be allocated to the department of transportation as approved by the transition team pursuant to Section 48 to implement the provisions of this act.

“(f)  The commissioner of transportation shall promulgate rules and regulations pursuant to Title 4, Chapter 5, to effectuate the purposes of this act.”

Cross-References. Automatic signals, § 65-11-113.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 43.

NOTES TO DECISIONS

1. Municipal Ordinances.

Municipal ordinance requiring construction of automatic signals and crossing gates at several railroad and street intersections at expense of railroad company was not invalid as being inconsistent with and repugnant to §§ 65-11-105 and 65-12-108 since the ordinance simply required more than the statutes. Southern R. Co. v. Knoxville, 223 Tenn. 90, 442 S.W.2d 619, 1968 Tenn. LEXIS 504 (1968), cert. denied, 396 U.S. 1002, 90 S. Ct. 551, 24 L. Ed. 2d 494, 1970 U.S. LEXIS 3286 (1970), cert. denied, Southern R. Co. v. Knoxville, 396 U.S. 1002, 90 S. Ct. 551, 24 L. Ed. 2d 494, 1970 U.S. LEXIS 3286 (1970).

Collateral References.

Absence, improper location, or insufficiency of signs warning approaching travelers of presence of crossing, responsibility for accident as affected by. 93 A.L.R. 218.

Failure of signaling device at crossing to operate, as affecting railroad company's liability. 90 A.L.R.2d 350.

65-11-106. Liability for blocking street crossing.

No member of a railroad train crew shall be held personally guilty of violating a municipal ordinance regulating the blocking of street crossings by trains or cars, on proof that such action was necessary to comply with the orders or instructions of the crew member's employer or its officers; provided, that nothing in this section shall relieve the employer or railway from any responsibility placed upon it by the ordinance.

Acts 1949, ch. 159, § 1; C. Supp. 1950, § 266.1; T.C.A. (orig. ed.), § 65-1106.

Collateral References.

Contributory negligence of child injured while climbing over or through railroad train blocking crossing. 11 A.L.R.3d 1168.

Liability of railroad for damage other than those incident to bodily injury for blocking street or highway crossing. 71 A.L.R. 917.

65-11-107. Elimination of grade crossings over public highways.

The department of transportation through its commissioner or the commissioner's designee has the power to eliminate grade crossings of any railroad or interurban railway track on any of the main traveled roads designated by the commissioner or the commissioner's designee as included in the general highway plan of the state, whenever, in the discretion of the commissioner or the commissioner's designee, the elimination of any such grade crossing is necessary for the protection of persons traveling on any such highway or any such railroad.

Acts 1921, ch. 132, § 1; Shan. Supp., § 1582a2; mod. Code 1932, § 2638; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 65-1107.

Law Reviews.

Torts — Intervening Cause — Pedestrian Injured by Motorist on Narrow Railroad Bridge, 27 Tenn. L. Rev. 629 (1960).

NOTES TO DECISIONS

1. Right of Railroad to Challenge Order of Commission.

Where a railroad challenged the validity of an order of the commission requiring the railroad to bear one half the cost of building an overpass over the railroad's tracks, the supreme court of Tennessee erred in refusing to consider the facts offered by the railroad for the purpose of showing the order arbitrary and unreasonable. Nashville, C. & S. L. Railway v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949, 1935 U.S. LEXIS 269 (1935).

2. City Ordinance Requiring Relocation of Facilities.

A city ordinance requiring a telephone company to relocate at its own expense its facilities where a grade crossing elimination project was to be carried out was invalid as an attempt by the city to exercise, under its police power, a right to require the company to pay a part of the expense of eliminating the grade crossing; and such exercise of police power is in direct conflict with the legislative policy of the state as shown by §§ 65-11-10765-11-112, which provide for the elimination of such grade crossings through the state highway department. Southern Bell Tel. & Tel. Co. v. Nashville, 35 Tenn. App. 207, 243 S.W.2d 617, 1951 Tenn. App. LEXIS 63 (Tenn. Ct. App. 1951).

City could not by contract and resolution authorize state to eliminate grade crossing on street subject to jurisdiction of city. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

3. Elimination of One Grade Crossing and Substitution of Another.

When, acting alone or in conjunction with others, the department has eliminated an existing grade crossing by substituting another of its selection and has re-routed the state highway over the substituted crossing, the powers conferred by the statute are exhausted and jurisdiction over the old route reverts to local authority. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

4. Streets and Highways Not Part of State System.

This section does not confer power to eliminate grade crossings on streets and highways no longer a part of the state highway system. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

Collateral References.

Constitutional power to compel railroad to relocate its tracks to abolish grade crossing. 55 A.L.R. 660, 62 A.L.R. 815, 109 A.L.R. 768.

Liability of railroad for injury or damage resulting from motor vehicle striking bridge or underpass because of insufficient vertical clearance. 67 A.L.R.2d 1364.

Municipal corporation's power to require railroad to eliminate grade crossings. 35 A.L.R. 1322, 36 A.L.R. 1122.

65-11-108. Location and character of substituted crossing.

When any such grade crossing is ordered to be eliminated, the commissioner of transportation or the commissioner's designee shall determine the location of the crossing to be substituted and the grade thereof, and whether it shall pass over or under the railroad tracks; provided, that on appeal from any such order by the railroad company affected to the chancery court in the judicial district in which the new grade crossing would be located, such chancery court shall have the power to make any change in the order appealed from with regard to the location and grade of the crossing to be constructed which may appear to the court to be necessary to adequately protect the safety of passenger and freight traffic on the railroad; and provided, further, that the appeal must be made within thirty (30) days of the date the order appealed from is certified to the railroad company affected.

Acts 1921, ch. 132, § 1; Shan. Supp., § 1582a3; mod. Code 1932, § 2639; impl. am. Acts 1955, ch. 69, § 1; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed), § 65-1108; Acts 1995, ch. 305, § 26.

NOTES TO DECISIONS

1. City Ordinance Requiring Relocation of Facilities.

City could not by contract and resolution authorize state to eliminate grade crossing on street subject to jurisdiction of city. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

2. Elimination of One Grade Crossing and Substitution of Another.

When, acting alone or in conjunction with others, the department has eliminated an existing grade crossing by substituting another of its selection and has re-routed the state highway over the substituted crossing, the powers conferred by the statute are exhausted and jurisdiction over the old route reverts to local authority. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

3. Streets and Highways Not Part of State System.

This section does not confer power to eliminate grade crossings on streets and highways no longer a part of the state highway system. Wilkey v. Cincinnati, N. O. & T. P. R. Co., 47 Tenn. App. 556, 340 S.W.2d 256, 1960 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1960).

65-11-109. Compliance with order to eliminate grade crossing.

When any such grade crossing shall be ordered to be eliminated as provided, it shall be the duty of the railroad company owning or operating the track at such crossing to comply with the order of the commissioner of transportation or the commissioner's designee within the time specified in such order by preparing and submitting to the commissioner or the commissioner's designee for approval detailed plans and specifications and estimates of cost for the construction of such underpass or overpass and by the construction of the underpass or overpass in accordance with the plans and specifications so approved, including the necessary approaches thereto; provided, that:

  1. Any such railroad company may request the commissioner of transportation or the commissioner's designee for an extension of time within which to begin and complete the actual construction of the underpass or overpass required by such order of the commissioner or the commissioner's designee. If the railroad company is dissatisfied with the commissioner's or the commissioner's designee's response to the request for an extension of time, such railroad company may file an appeal to the chancery court in the judicial district in which the grade crossing in question is located; provided that the appeal must be made within thirty (30) days of the date of the adverse response;
  2. The detailed plans and specifications and estimates of cost for any such underpass or overpass ordered by the commissioner or the commissioner's designee may be prepared in the discretion of the commissioner or the commissioner's designee by the department of transportation's own engineers, or by engineers employed for the purpose, in which event such plans and specifications and estimates of cost shall be subject to the approval of the railroad company affected;
  3. If any such railroad company shall, in obedience to the direction of the commissioner or the commissioner's designee make surveys and prepare estimates and plans, then the commissioner or the commissioner's designee shall within a reasonable time, not exceeding six (6) months, reimburse such railroad or railway for one half (½) of the expense and cost of such work; and if, after the making and preparation of any such surveys, plans, and estimates of cost by any railroad company under the orders of the commissioner or the commissioner's designee, or any part thereof, the order for the elimination of the grade crossing be revoked by the commissioner or the commissioner's designee, and the elimination of such crossing abandoned, the commissioner or the commissioner's designee shall, within a reasonable time, not exceeding six (6) months from the date of the revocation, reimburse the railroad or railway company for all the actual expense and cost of such work incurred by the company, upon a presentation of an itemized and sworn statement of the expense and cost, the amount thereof to be included as a part of the cost of the highway of which such crossing is a part;
  4. Before any railroad company shall be obligated or required to commence and prosecute the actual and physical work of separating any such grade crossing, the commissioner or the commissioner's designee shall have available sufficient funds with which to reimburse the railroad company for that part of the expenses of the separation which is to be paid out of the public funds under this chapter; and the commissioner or the commissioner's designee shall make to the railroad company, prosecuting such work, monthly payments in an amount which shall equal the proportion of the cost and expense which the public is required to pay under this chapter of all that part of the work, including both labor and materials, completed at the date of any monthly payment; and
  5. When any grade crossing covered by §§ 65-11-107 and 65-11-108 shall have been ordered to be eliminated, as provided, it shall be the duty of the railroad company upon which such order of the state department of transportation may have been served, in accordance with this chapter, at once to comply with such order, or avail itself of the right of an appeal, as set forth in subdivision (1), within sixty (60) days from the date of the service of the order, and in the event any such railroad company should fail to comply with such order directing the elimination of such grade crossing, or to appeal within sixty (60) days, the commissioner or the commissioner's designee shall have the authority to proceed immediately with the construction of such grade crossing separation, and upon the completion of same to assess one half (½) of the cost of preparation of plans and estimates and one half (½) of the cost of the work of construction against the railroad company affected thereby, and all such costs as are assessed in this manner against such railroad company shall be a lien upon the physical properties of such railroad company, which lien shall be prior to any lien then existing against such physical properties, and the amount of such cost may be recovered against such railroad company by a suit brought on behalf of the state by the attorney general and reporter, and the enforcement, in the name of the state, of the lien.

Acts 1921, ch. 132, § 2; 1923, ch. 35, § 1; Shan. Supp., § 1582a4; mod. Code 1932, § 2640; impl. am. Acts 1955, ch. 69, § 1; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 65-1109; Acts 1995, ch. 305, § 27.

Cross-References. Judgments for timbers, work, or damages to person or property, priority over other liens, § 65-10-112.

Liens of contractors, subcontractors, laborers and materialmen, priority, § 65-10-206.

Collateral References.

Constitutional power to compel railroad company to pay or contribute to expense of relocating or reconstructing highway crossing. 55 A.L.R. 660, 62 A.L.R. 815, 109 A.L.R. 768.

65-11-110. Apportionment of work in constructing underpass or overpass.

The commissioner of transportation or the commissioner's designee may, by agreement or contract with any railroad company, apportion the work to be done in the construction of any such underpass or overpass between the railroad company and contractors acting under the control and supervision of the commissioner or the commissioner's designee, and contracts for the construction of the portion of such underpass or overpass assumed under such contract or agreement by the commissioner or the commissioner's designee shall be made in the manner and under the same conditions as contracts are made by the commissioner or the commissioner's designee for the construction of other portions of the state highway system as provided by law; provided, that when the commissioner or any of the department of transportation's employees or contractors, or any person acting under the orders of the commissioner or the commissioner's contractors, shall go or be upon the right-of-way of any railroad company, they shall be subject to any reasonable rules and regulations of such railroad company made for the protection of its traffic employees and passengers.

Acts 1921, ch. 132, § 3; Shan. Supp., § 1582a5; mod. Code 1932, § 2641; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 65-1110.

65-11-111. Apportionment of cost of eliminating grade crossing.

Each railroad company owning or operating the track or tracks at any grade crossing ordered or agreed to be eliminated under this chapter shall bear fifty percent (50%) of the total cost of the elimination of any such grade crossing, the total cost to include the cost of the construction of the underpass or overpass substituted for the grade crossing, of the approaches thereto, of the surveys and preparations of the plans and estimates of cost for such underpass or overpass crossing ordered by the commissioner of transportation or the commissioner's designee, and of any revision of the grade and layout of the railroad tracks directly made necessary by such grade separation, but shall not include the cost of metal surfacing or road pavement required in accomplishing the elimination of any grade crossing; provided, that any disagreement between the commissioner or the commissioner's designee and the railroad company affected with regard to the extent or cost of any such revision of the grade and layout of the railroad tracks directly made necessary by any grade separation, shall be resolved by the commissioner, and the commissioner's decision shall be final. The remaining fifty percent (50%) of the total cost shall be borne out of the public funds as a part of the cost of the highway of which the crossing is a part; provided, that a detailed statement of the expense of all that part of the construction of such underpass or overpass crossing, including the preparation of the detailed plans and specifications, etc., which is conducted by the railroad company, shall be submitted to the commissioner or the commissioner's designee, duly sworn to by some official of the railroad company, having knowledge of the facts; and provided, further, that this provision for the division of cost between the public and the railroad company shall apply only to crossings already in existence or hereafter made, or proposed over railroad tracks in existence at the date of the order for elimination thereof, and shall not apply to any crossing of any highway by any railroad track not in existence at the date of the designation of such highway as a part of the state highway system by the department of transportation.

Acts 1921, ch. 132, § 4; 1925, ch. 88, § 1; Shan. Supp., § 1582a6; mod. Code 1932, § 2642; impl. am. Acts 1955, ch. 69, § 1; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 65-1111; Acts 1995, ch. 305, § 28.

Textbooks. Tennessee Jurisprudence, 21 Tenn. Juris., Railroads, § 21.

NOTES TO DECISIONS

1. Elimination of Grade Crossings.

Order of state highway department eliminating grade crossing of railroad and requiring railroad to pay half the expense was not invalid on the ground that action was for the primary purpose of connecting highway involved with highways in other states even though federal government contributed to cost of construction of highway including elimination of grade crossings, since state highway department was authorized under the police power to designate main traveled highways and locate and alter grades. Nashville, C. & S. L. Ry. v. Baker, 167 Tenn. 470, 71 S.W.2d 678, 1933 Tenn. LEXIS 62 (1934), rev'd, Nashville, C. & S. L. Railway v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949, 1935 U.S. LEXIS 269 (1935), dismissed, Nashville C. & St. L. R. Co. v. Herndon, 55 S. Ct. 87, 293 U.S. 518, 79 L. Ed. 632, 1934 U.S. LEXIS 36 (1934), rev'd on other grounds, Nashville, C. & S. L. Railway v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949, 1935 U.S. LEXIS 269 (1935).

2. Cost of Overhead Crossing.

Where trestle of railroad holding right of way barred further extension of city streets, the city was required to bear the cost of overhead crossing. Memphis v. Southern R. Co., 167 Tenn. 181, 67 S.W.2d 552, 1933 Tenn. LEXIS 24 (1934).

65-11-112. Maintenance of underpass or overpass.

When any underpass or overpass crossing is constructed on any state highway, under this chapter, it shall be maintained as follows:

  1. The railroad company owning or operating the track at any such crossing shall maintain in good and safe repair at its sole expense all that part of any underpass or overpass and the approaches thereto on its rights-of-way, and also that part of any overpass structure or the approach thereto not supported by a fill, whether on its right-of-way or not, except the surface of the highway; provided, that the flooring of any overpass which supports the surface of the highway or which may constitute the surface of the highway shall be considered as a part of the structure to be maintained by and at the expense of the railroad company; and
  2. The commissioner of transportation or the commissioner's designee shall maintain in good and safe repair out of the public funds, any fill, approach to any such crossing not on the right-of-way of the railroad company, and also the entire surface of the highway at all points.

Acts 1921, ch. 132, § 5; Shan. Supp., § 1582a7; Code 1932, § 2643; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 65-1112.

NOTES TO DECISIONS

1. Maintenance of Overpass.

If railroad undertakes not only to construct but to maintain and care for an overpass, it assumes a duty to the traveling public to keep the overpass and its approaches in reasonably safe condition, and where complaint alleged dangerous condition of railing of approach of overpass over defendant's tracks it was error to dismiss the complaint. Holder v. St. Louis-San Francisco R. Co., 172 F.2d 217, 1949 U.S. App. LEXIS 2674 (6th Cir. Tenn. 1949).

65-11-113. Automatic warning or protective devices.

    1. Within six (6) months after the occurrence of a fatality resulting from a collision between any railroad engine or train and a vehicle or pedestrian at any unmarked railroad grade crossing, where there are regularly scheduled trains, one hundred (100) or more vehicles cross daily and it is also a regular school bus crossing, and/or upon the order of the commissioner of transportation or the commissioner's designee, the railroad company responsible for maintaining the track and right-of-way at such grade crossing shall install or cause to be installed a railroad crossing marker with automatic flashing signal lights and a bell on either side of the tracks along such street, road or highway crossing such tracks, in such a manner that approaching motorists, riders or pedestrians may be warned of the hazard and alerted to watch for an oncoming train or engine.
    2. A railroad company shall have six (6) months from the time of an order of the commissioner or the commissioner's designee in which to install or cause to be installed the automatic warning or protective devices required. If such devices are not installed and operative at the end of this period of time, and the commissioner has not granted an extension based on hardship or act of God, the speed of trains operating within one (1) mile in each direction of such crossing shall be restricted to not more than twenty-five (25) miles per hour. This restriction shall continue until the devices are fully operational.
    1. The cost of installing such signal devices shall be borne equally by the railroad company, the state of Tennessee, and the county, or the municipality, if such signal devices are installed within the corporate limits or the metropolitan government, where applicable.
    2. Payment of the state's share shall be made as reimbursement of the railroad company of one third (1/3) of the cost of such installation, by warrant of the commissioner of finance and administration upon the state treasury, after inspection of the site and certification by the commissioner of transportation or the commissioner's designee that such signal devices have been installed in compliance with this section; provided, that the railroad company has first submitted to the commissioner of finance and administration a sworn statement of the total costs incurred by the railroad company in installing such signal devices.
    3. Payment of the municipality's or county's or metropolitan government's share of the costs shall similarly be made in accordance with the fiscal procedures of such municipality, county, or metropolitan government after receipt of a sworn statement from the railroad company of the total cost of the installations and verification of such installation by the appropriate municipal, county or metropolitan government official.
  1. If any county, municipal or metropolitan government fails or refuses to reimburse the railroad company as provided in this section, the commissioner of finance and administration shall cause the necessary amount of money to be withheld from such county, municipal or metropolitan government any amount due such county, municipal or metropolitan government from the proceeds of the state gasoline tax and reimburse the railroad company using such funds otherwise due the county, municipal or metropolitan government. The Tennessee department of transportation shall be prohibited from adopting any rules or regulations which will circumvent the purposes of this section by setting incompatible criteria for determining priorities for the installation of railroad crossing signals.
  2. In the event federal funds are available to defray the cost of such installation in whole or in part, the federal rules then applicable shall determine the allocation of the costs of such installation.
  3. Any railroad company failing to comply with the requirements of subsections (a)-(d) is subject to a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) for each day of continued violation.
  4. The department of transportation is authorized to construct protective or warning devices at or in the vicinity of any railroad crossing of a public highway owned by a county or incorporated city or town, based upon the showing of need resulting from a multidisciplinary study, whenever federal funds are available for such construction. The department of transportation is further authorized to supply a maximum of one percent (1%) of the funds required for such construction provided the county or incorporated city or town in which the construction will be performed complies with the necessary conditions for receipt of the balance of federal matching funds for such construction.
  5. Notwithstanding any other law to the contrary, the department of transportation shall construct automatic warning devices at the railroad crossing at Tipton Station Road in southern Knox County.

Acts 1974, ch. 646, §§ 1, 2; 1979, ch. 236, § 1; T.C.A., §§ 65-1113, 65-1115; Acts 1983, ch. 184, § 1; T.C.A., § 65-11-114; Acts 1996, ch. 912, § 1.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

65-11-114. [Transferred.]

Compiler's Notes. Former § 65-11-114, concerning noncompliance with § 65-11-113(a)-(d), was transferred to § 65-11-113 in 1991.

65-11-115. Installation of warning strips authorized.

The department of transportation may install warning strips on both approaches of any highway crossing on the system of state highways not protected by automatic warning or protective devices, unless the surface of such approaches is gravel or chip and seal paving.

Acts 1990, ch. 997, § 1.

65-11-116. Competitive bidding — Negotiating labor costs.

  1. Notwithstanding any law to the contrary, all contracts to perform maintenance or improvements on railroads which are funded, in whole or in part, with funds administered by the Tennessee department of transportation shall be awarded pursuant to competitive bidding requirements as approved by the department of transportation. This section shall not apply to rail crossings to be signalized following a fatality pursuant to § 65-11-113.
  2. In the alternative to subsection (a), all contracts to perform maintenance or improvements on railroads with collective bargaining labor agreements shall allow negotiated labor costs for the labor portion of the contracts. It is the intent of the general assembly that only labor and associated costs shall be reimbursable pursuant to this provision. All other costs associated with the contract, including, but not limited to, materials and equipment, shall be subject to competitive bidding requirements as approved by the department of transportation. All costs associated with such contracts shall be subject to audit by the comptroller of the treasury to ensure that the contracts are performed on a break-even basis and that the state does not reimburse profits to the railroad company involved.

Acts 1999, ch. 450, § 2.

Chapter 12
Operation of Railroads

65-12-101. [Repealed.]

Compiler's Notes. Former § 65-12-101 (Acts 1907, ch. 390, § 2; Shan., § 3059a22; mod. Code 1932, § 5397; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-1201; Acts 1995, ch. 305, § 29), concerning depots, was repealed by Acts 2003, ch. 19, § 1, effective April 11, 2003.

65-12-102. [Repealed.]

Compiler's Notes. Former § 65-12-102 (Acts 1875, ch. 142, § 6; Shan., § 2420; mod. Code 1932, § 4007; T.C.A. (orig. ed.), § 65-1202), concerning requirement that railroad provide schedules, passenger and freight services, was repealed by Acts 1997, ch. 39, § 2, effective April 2, 1997.

65-12-103. Payment of fare required.

If any passenger refuses to pay the required fare, the conductor may put such passenger off the cars at any station or convenient point where the passenger can step on land.

Acts 1875, ch. 142, § 6; Shan., § 2421; Code 1932, § 4008; T.C.A. (orig. ed.), § 65-1203.

Cross-References. Trespassing on railroad car, penalty, §§ 39-14-405, 39-14-406.

NOTES TO DECISIONS

1. Refusal to Accept Cash Fare.

Where lady passenger paid cash fare to conductor on going trip from a station which had no agent, but same conductor refused to accept cash fare on return trip, since station from which passenger came on return trip had an agent, and ejected the passenger, the railroad was not liable in damages for ejection. Southern R. Co. v. Pickle, 138 Tenn. 238, 197 S.W. 675, 1917 Tenn. LEXIS 26 (1917).

Collateral References.

Acceptance by one conductor of invalid ticket or pass as affecting liability for expulsion of passenger by succeeding conductor. 88 A.L.R. 763.

Carrier's liability for ejection or threatened ejection from train not stopping at passenger's station. 36 A.L.R. 1018.

Duty on ejection of passenger or child for refusal to pay child's fare. 1 A.L.R. 1454.

Ejection of child for failure to pay fare as ejection of custodian. 1 A.L.R. 1453.

Evidence of right to free transportation on public conveyance. 3 A.L.R. 387.

Forwarder, discrimination against. 141 A.L.R. 932.

Jurisdiction of state court of action involving discrimination in relation to interstate shipment. 64 A.L.R. 333.

Liability of railroad company for acts of employees in ejecting trespassers from train. 72 A.L.R. 536.

Loss or theft of passenger's ticket or other token of right to transportation as affecting rights and duties of carrier and passenger. 127 A.L.R. 222.

Reentering car or train after ejection. 5 A.L.R. 352.

Special services or facilities afforded by shipper as a factor in carrier's rates. 25 A.L.R. 191.

Waiver by carrier of rights under interstate shipment as constituting unlawful discrimination among shippers. 135 A.L.R. 611.

65-12-104. [Repealed.]

Compiler's Notes. Former § 65-12-104 (Acts 1949, ch. 84, §§ 2-4; C. Supp. 1950, § 5398.1; impl. am. Acts 1955, ch. 69, § 1; T.C.A. (orig. ed.), § 65-1204; Acts 1995, ch. 305, § 29), concerning discontinuance of passenger services, was repealed by Acts 1997, ch. 39, § 2, effective April 2, 1997.

65-12-105. [Repealed.]

Compiler's Notes. Former § 65-12-105 (Acts 1875, ch. 142, § 6; Shan., § 2421; Code 1932, § 4008; T.C.A. (orig. ed.), § 65-1203), concerning preferential freight contracts, was repealed by Acts 1997, ch. 39, § 2, effective April 2, 1997.

65-12-106. [Repealed.]

Compiler's Notes. Former § 65-12-106 (Acts 1897, ch. 10, § 28; 1907, ch. 390, § 3; Shan., § 3059a65; Code 1932, § 5441; T.C.A. (orig. ed.), § 65-1205; Acts 1995, ch. 305, § 29), concerning unjust discrimination, was repealed by Acts 1997, ch. 39, § 2, effective April 2, 1997.

65-12-107. [Repealed.]

Compiler's Notes. Former § 65-12-107 (Code 1858, §§ 1170, 1171 (deriv. Acts 1857-1858, ch. 48, §§ 35, 36); Shan., §§ 1578, 1579; Code 1932, §§ 2632, 2633; T.C.A. (orig. ed.), §§ 65-1206, 65-1207), concerning stopping for transfer of baggage and freight, was repealed by Acts 1997, ch. 39, § 2, effective April 2, 1997.

65-12-108. Precautions required for prevention of accidents.

In order to prevent accidents upon railroads, the following precautions shall be observed:

  1. The officials having jurisdiction over every public road crossed by a railroad shall place at each crossing a sign, marked as provided by § 65-11-105. The county legislative body shall appropriate money to defray the expenses of the signs. The failure of any engine driver to blow the whistle or ring the bell at any public crossing so designated by either the railroad company or the public official shall constitute negligence with the effect and all as set forth in § 65-12-109;
  2. On approaching every crossing so distinguished, the whistle or bell of the locomotive shall be sounded at the distance of one fourth (¼) of a mile from the crossing, and at short intervals until the train has passed the crossing;
  3. Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident; and
  4. It is unlawful for any person operating a railroad to use road engines without having them equipped with an electric light placed on the rear of the engine, tank, or tender, which light shall be a bull's eye lens of not less than four inches (4") in diameter with a bulb of not less than sixty (60) watts power, so that such road engine can be operated with safety when backing and the light so placed shall be burning while any such engine may be used in any backing movement. Such lights shall be operated at night; and any person violating any of these provisions shall be fined the sum of not less than twenty-five dollars ($25.00), and not more than one hundred dollars ($100), for each offense.

Code 1858, § 1166 (deriv. Acts 1855-1856, ch. 94, §§ 1, 5-9; 1857-1858, ch. 44, § 3); Shan., § 1574; impl. am. Acts 1921, ch. 41, § 2; Acts 1925, ch. 133, § 1; mod. Code 1932, § 2628; Acts 1959, ch. 130, § 1; 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 65-1208; Acts 1982, ch. 632, § 1.

Cross-References. Automatic signals at crossings, § 65-11-113.

Duty with respect to livestock on track, § 65-12-114.

Highway crossings, construction and maintenance, §§ 65-11-10765-11-113.

Incline railroads, §§ 65-18-104, 65-18-105.

Reward for apprehension of persons obstructing tracks, § 40-8-102.

Tracks not to obstruct travel on highways, streets, and alleys, § 65-6-122.

Textbooks. Tennessee Jurisprudence, 2 Tenn. Juris., Animals, §§ 12-15, 17; 2 Tenn. Juris., Appeal and Error, § 217; 4 Tenn. Juris., Automobiles, §§ 12, 13, 39; 5 Tenn. Juris., Carriers, §§ 10, 11; 19 Tenn. Juris., Negligence, §§ 6, 16, 20; 21 Tenn. Juris., Railroads, §§ 29-32, 34, 37, 41-43, 46; 23 Tenn. Juris., Street Railroads, § 6; 23 Tenn. Juris., Streets and Highways, § 43.

Law Reviews.

Torts—The Occupied Crossing Doctrine-Determining Contributory Negligence As a Matter of Law in Railroad Accident Cases, 53 Tenn. L. Rev. 435 (1986).

Attorney General Opinions. A county is required to reimburse various municipalities within the county for the entire expenses the cities have incurred in erecting railroad crossing signs, and such reimbursements should be from the county's general fund, since the county highway commission has no authority over those roads, OAG 01-066, 2001 Tenn. AG LEXIS 58 (4/30/01).

Under existing law, remote-controlled locomotives are authorized in Tennessee, OAG 04-022, 2004 Tenn. AG LEXIS 22 (2/11/04).

NOTES TO DECISIONS

1. Construction of Statute.

The provisions of this act are merely declaratory of the common law duties of railroads. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

The 1959 amendment to this section converted causes of actions for violation of the Statutory Precautions Act into mere common-law rights of action. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

Under the 1959 amendment, violation of § 65-12-108 is merely negligence per se with the burden of proof placed on the plaintiff. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962); Union R. Co. v. Jinks, 55 Tenn. App. 491, 402 S.W.2d 495, 1965 Tenn. App. LEXIS 263 (Tenn. Ct. App. 1965).

2. Effect of Amendment.

The 1959 act which repealed former § 65-1210 and amended this section and § 65-12-109 was not applicable to suits brought against railroad that arose out of accident that occurred before enactment of the act although suits were commenced after the act went into effect because § 1-3-101 forbids the repeal of a statute to affect any right which accrued or proceeding which was commenced under the repealed statute and the act before it was amended provided plaintiffs with substantive rights that were neither destroyed or impaired by the 1959 act. Southern R. Co. v. Miller, 285 F.2d 202, 1960 U.S. App. LEXIS 3074, 85 A.L.R.2d 842 (6th Cir. Tenn. 1960).

Where, in 1959, § 65-12-109 was amended so as to make contributory negligence and lack of proximate cause defenses to an action based on the Statutory Precautions Act, although the trial took place after the amendment, such amendment was not applicable, since the accident occurred in 1958. Gilreath v. Southern R. Co., 323 F.2d 158, 1963 U.S. App. LEXIS 4124 (6th Cir. Tenn. 1963).

3. Scope of Statute.

Federal Railway Safety Act, 49 U.S.C. § 20106, does not preempt T.C.A. § 65-12-108, which requires a train to sound its whistle or bell on approaching a public crossing. Lewis v. Norfolk S. Ry. Co., 618 F. Supp. 2d 833, 2008 U.S. Dist. LEXIS 46247 (W.D. Tenn. June 11, 2008).

4. —Trespassers.

Fact that person operating machine near railway roadway may have been a trespasser on the roadway did not relieve railroad of duty not to cause injury to him. Belcher v. Tennessee C. R. Co., 214 Tenn. 74, 377 S.W.2d 928, 1964 Tenn. LEXIS 451 (1964).

5. Pleading.

The 1959 amendment to § 65-12-109 converted causes of action for violation of the Statutory Precautions Act to mere common law rights of action so that it is no longer necessary to have a separate count alleging violation of the statute in addition to the common law count. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962).

Plaintiff alleging violation of the statute cannot plead absence of proximate contributory negligence on his part. Belcher v. Tennessee C. R. Co., 214 Tenn. 74, 377 S.W.2d 928, 1964 Tenn. LEXIS 451 (1964).

6. Contributory Negligence.

Since the 1959 amendment, violations of the Statutory Precautions Act constitute merely negligence per se and the defense of contributory negligence is available just as in other cases. Union R. Co. v. Jinks, 55 Tenn. App. 491, 402 S.W.2d 495, 1965 Tenn. App. LEXIS 263 (Tenn. Ct. App. 1965).

Driver of automobile who had unobstructed view of railroad track was guilty of proximate contributory negligence so as to bar recovery in suit arising out of collision of automobile and train even though engineer may have failed to comply with statutory precautions. Union R. Co. v. Jinks, 55 Tenn. App. 491, 402 S.W.2d 495, 1965 Tenn. App. LEXIS 263 (Tenn. Ct. App. 1965).

Proximate contributory negligence was a bar to both a common-law cause of action based on negligence and to a negligence action under the Statutory Precautions Act. Flinchum v. Clinchfield R. Co., 460 F.2d 252, 1972 U.S. App. LEXIS 9327 (6th Cir. Tenn. 1972), cert. denied, 409 U.S. 1044, 93 S. Ct. 541, 34 L. Ed. 2d 494, 1972 U.S. LEXIS 459 (1972), cert. denied, Flinchum v. Clinchfield R. Co., 409 U.S. 1044, 93 S. Ct. 541, 34 L. Ed. 2d 494, 1972 U.S. LEXIS 459 (1972).

Where the proximate cause of the accident is the negligence of the plaintiff driver, he is barred from recovery by contributory negligence as a matter of law even in the event of negligence by the defendant railroad. Westbrook v. Illinois C. G. Railroad, 688 S.W.2d 453, 1985 Tenn. App. LEXIS 2630 (Tenn. Ct. App. 1985).

Plaintiff was held to be contributorily negligent as a matter of law for running into the side of a moving train at night at a crossing with which the plaintiff was familiar, which was marked by a crossbuck, and which had streetlights on either side of the crossing. Westbrook v. Illinois C. G. Railroad, 688 S.W.2d 453, 1985 Tenn. App. LEXIS 2630 (Tenn. Ct. App. 1985).

7. Precautions at Public Crossings.

8. —Construction of Statutory Provisions.

In action by plaintiff injured in collision with train at crossing where it was shown that there was a large sign at the crossing on which the words “railroad crossing” were printed in large letters even though it did not appear whether it was the standard railroad crossing sign adverted to in § 65-11-105 or whether either defendant railroad or proper public official erected it, defendant railroad cannot escape duties invoked under subsection two of this section by claiming sign failed to meet the statutory requirements. Bell v. Cincinnati, N. O. & T. P. R. Co., 205 F. Supp. 781, 1962 U.S. Dist. LEXIS 3865 (E.D. Tenn. 1962).

Where the record discloses no evidence that the crossing in question had been duly designated for statutory precautions as required by this section, failure to comply with this section cannot be considered. Prater v. Louisville & N. R. Co., 59 Tenn. App. 82, 438 S.W.2d 68, 1968 Tenn. App. LEXIS 330 (Tenn. Ct. App. 1968).

Plaintiffs were not permitted to allege as an act of negligence any failure of the defendant railroad to establish and maintain adequate warning signs, devices or other safety appliances because the railroad was not required by Tennessee law to erect warning signs at crossings; that was the function of the overseers of public roads. Harper v. Monteagle Inn, Inc., 498 F. Supp. 913, 1978 U.S. Dist. LEXIS 18118 (E.D. Tenn. 1978).

9. — —Municipal Ordinance.

Municipal ordinance requiring construction of automatic signals and crossing gates at several railroad and street intersections at expense of railroad company was not invalid as being inconsistent with and repugnant to § 65-11-105 and this section since the ordinance simply required more than the statutes. Southern R. Co. v. Knoxville, 223 Tenn. 90, 442 S.W.2d 619, 1968 Tenn. LEXIS 504 (1968), cert. denied, 396 U.S. 1002, 90 S. Ct. 551, 24 L. Ed. 2d 494, 1970 U.S. LEXIS 3286 (1970), cert. denied, Southern R. Co. v. Knoxville, 396 U.S. 1002, 90 S. Ct. 551, 24 L. Ed. 2d 494, 1970 U.S. LEXIS 3286 (1970).

10. Precautions upon Approaching Cities and Towns.

11. —Cities, Towns and Trains Covered.

Since former subdivision (3) (deleted by amendment) did not apply to accidents outside corporate limits of cities and towns, demurrer was properly sustained to count in declaration alleging violation of such subsection where declaration showed on its face that accident occurred outside corporate limits. Belcher v. Tennessee C. R. Co., 214 Tenn. 74, 377 S.W.2d 928, 1964 Tenn. LEXIS 451 (1964).

12. Prevention of Accidents — If Obstruction on Track.

13. —Pleading.

Count in declaration which in effect alleged that bucket at end of tractor working along railway was an obstruction on roadway and that defendant railroad failed to observe precautions as required by subdivision (3) and breached duty owed to operator of the machine and that as a proximate result thereof he was injured stated a cause of action. Belcher v. Tennessee C. R. Co., 214 Tenn. 74, 377 S.W.2d 928, 1964 Tenn. LEXIS 451 (1964).

14. —Evidence.

Where evidence shows that plaintiff riding in truck and driver saw and heard train in sufficient time to stop if brakes had not failed, that there was good visibility for the train crew, that the train crew was keeping a lookout and that the brakes on the train where applied immediately after the truck appeared on the tracks, there was no evidence to support a violation of this section. Prater v. Louisville & N. R. Co., 59 Tenn. App. 82, 438 S.W.2d 68, 1968 Tenn. App. LEXIS 330 (Tenn. Ct. App. 1968).

15. Care Required of Streetcars.

Streetcar companies must exercise such care and caution for the purpose of avoiding accidents and endangering property and persons as reasonable prudence will suggest. Memphis C. R.R. Co. v. Logue, 81 Tenn. 32, 1884 Tenn. LEXIS 5 (1884).

Decisions Prior to 1959 Amendment

Note.  Prior to the 1959 amendment the sign required to be erected in subsection (1) was to be erected by the “overseer” of the public road and under § 65-12-109 the railroad was responsible for all damages when failing to comply regardless of negligence but under former § 65-1210 was not responsible if it complied. With these exceptions the following cases would seem to apply to the present section.

1. Matters Pertaining to Statute as a Whole.

2. —Construction of Statute.

It was manifest that all the provisions in this section and § 65-12-109 were to be taken as a whole, and considered together. East T. & V. R.R. Co. v. Swaney, 73 Tenn. 119, 1880 Tenn. LEXIS 95 (1880); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912). See also Memphis & C.R.R. v. Scott, 87 Tenn. 494, 11 S.W. 317 (1889).

The provisions of the statute embraced in subdivision (2), as well as those in subsection (3) (deleted by amendment), are not concurrent with, or declaratory of, the common law, but wholly statutory. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

The supreme court knows, as a matter of history, that when the provisions of the Code were made, the steam railroad had not been developed to the present high state of perfection, and that the wood fire engines made much less speed than engines do now. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

While this section and § 65-12-109 are in derogation of the common law, they are also remedial in character and are entitled to a construction which will not defeat the purposes had in mind by the general assembly at the time of their enactment. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919).

In construing this section, the true intent of the general assembly should be carried out; but the statute should not be enlarged by implication. Gordon v. Tennessee C. R. Co., 167 Tenn. 302, 69 S.W.2d 611, 1933 Tenn. LEXIS 41 (1934).

This statute is in the nature of a penal regulation, for safety purposes, and the failure to observe the statute and injury following, creates liability. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

Failure to observe statutory precautions fixed absolute liability upon the railroad. Nashville, C. & S. L. Ry. v. Smith, 33 Tenn. App. 45, 228 S.W.2d 495, 1949 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1949).

3. —Common Law.

The rights and liabilities of a railroad company in this state in regard to accidental injuries to persons or property as they existed at common law have generally been merged into statutory regulations by which those rights and liabilities are clearly defined. Southern R. Co. v. Noah, 180 Tenn. 532, 176 S.W.2d 826, 1944 Tenn. LEXIS 319 (1944).

Evidence of noncompliance with statute is not admissible under common-law count. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

4. —Statutory Precautions.

The statute is imperative in its requirements. Nashville & C. R. R. Co. v. Thomas, 52 Tenn. 262, 1871 Tenn. LEXIS 260 (1871); Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911); Southern Ry. v. Harris, 9 Tenn. App. 589, 1929 Tenn. App. LEXIS 115 (1929).

Each and all of the precautions (except those required of overseers of public roads, by subdivision (1)) are required to be observed by the railroad employees in the operation of engines and trains; but no correlative duty to observe any precautions whatever to carry out the purpose of this legislation is laid upon a person whose “person, animal, or other obstruction appears upon the road.” Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

The liability created by this statute is absolute, and not dependent upon proof that the injury resulted from failure to observe the statutory precaution. Southern R. Co. v. Koger, 219 F. 702, 1915 U.S. App. LEXIS 1660 (6th Cir. Tenn. 1915), cert. denied, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915), cert. denied, Southern R. Co. v. Koger, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915).

The railroad would not be exonerated from liability if it had observed all the statutory precautions after the decedent's wagon appeared on the railroad track in a position to be struck by the nearing train, where it had previously failed to comply with the requirements of this statute, by its failure to sound the bell or whistle on approaching the crossing, for all the precautions must be complied with. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

This statute is mandatory, and the failure to comply with it is negligence, and renders the defendant railroad company liable for damages. Tennessee C. R. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225, 1920 Tenn. LEXIS 22 (1920).

The statute is “imperative and mandatory” and demands absolute obedience to its provisions when possible, whether seemingly necessary or not; and the impossibility to stop the train before colliding with the obstruction does not excuse nonobservance of the statutory precautions as far as observance is possible. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

The language of this section is explicit and certain, the railroad must show strict compliance with the statute to absolve itself of negligence and even contributory negligence on the part of a person injured does not excuse a strict compliance. Majestic v. Louisville & N. R. Co., 147 F.2d 621, 1945 U.S. App. LEXIS 2180 (6th Cir. Tenn. 1945).

The provisions of the statute are imperative and mandatory and require absolute obedience and this is true regardless of whether compliance appears to be either necessary or effective to prevent an accident. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

5. — —Effect of Proximate Cause.

The utmost care and diligence is required of railroad companies to prevent accidents; the defense that all effort to avoid the accident would have been ineffectual will not be tolerated for the protection of the company; the injunctions of the law upon them are peremptory. The sound of the whistle might arouse a person sleeping upon the track, or by a checking of the speed, he might be enabled to save himself in an instant. East T. & G. R. Co. v. St. John, 37 Tenn. 524, 1858 Tenn. LEXIS 55 (1858); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Louisville & N.R.R. v. Womack, 173 F. 752, 1909 U.S. App. LEXIS 5102 (6th Cir. 1909); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

A railroad company is responsible for the damages occasioned by, or resulting from, the accident or collision, unless it shows that the statutory precautions were performed; and the fact that the accident or collision would have occurred had the precautions been performed will not relieve the railroad company from the performance thereof, or from the liability for the damages resulting from the accident. Cases of hardship and absurdity may occur from such construction of the statute, but the language is explicit and certain, and the construction is inevitable. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871). See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Nashville & C. R. R. Co. v. Thomas, 52 Tenn. 262, 1871 Tenn. LEXIS 260 (1871); Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); Memphis & C.R.R. v. Smith, 56 Tenn. 860, 1872 Tenn. LEXIS 214 (1872); Railroad v. Walker, 58 Tenn. 383, 1872 Tenn. LEXIS 271 (1872), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Chesapeake, O. & S.W.R.R. v. Foster, 88 Tenn. 671, 13 S.W. 694 (1890); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

Compliance with statute will not be excused though the jury may be of opinion that such observance could not have prevented the accident. Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911); Southern R. Co. v. Koger, 219 F. 702, 1915 U.S. App. LEXIS 1660 (6th Cir. Tenn. 1915), cert. denied, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915), cert. denied, Southern R. Co. v. Koger, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915).

The statute does not brook the slightest speculation upon things that are probable or possible, either by the courts or by the company's agents, but demands an absolute obedience to its provisions, whether they seem to be necessary or not. Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); Chesapeake, O. & S.W.R.R. v. Foster, 88 Tenn. 671, 13 S.W. 694 (1890); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900). But see Louisville & N.R.R. v. Truett, 111 F. 876, 1901 U.S. App. LEXIS 4441 (6th Cir. 1901); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

The statute is imperative, and the breach of it gives a right of action for injuries inflicted on the occasion, whether the nonobservance of the statute was the proximate cause of the accident or not. Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900). See also Collins v. East T., V. & G. R. Co., 56 Tenn. 841, 1872 Tenn. LEXIS 212 (1872); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Howard & Herrin v. Nashville, C. & S. L. R. Co., 3 Tenn. App. 174, — S.W. —, 1926 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1926).

Violation of section gives a cause of action for personal injuries even though the violation is not the proximate cause of the accident. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954); Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

6. — —Burden of Proof.

When the statute is applicable, the burden of proof rests upon the railroad company to show affirmatively due observance of the required statutory precautions, or that such observance was impossible, without its default, and that it was guilty of no negligence, and that the accident was unavoidable, in order to avoid liability for damages resulting from the accident. Nashville, C. & S. L. Ry. v. Smith, 33 Tenn. App. 45, 228 S.W.2d 495, 1949 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1949).

7. — —Unavoidable Accident.

It constituted no defense to prove that the accident and injury would have occurred, even if the precautions had been observed. Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Tennessee Cent. R.R. v. Morgan, 132 Tenn. 1, 175 S.W. 1148, 1914 Tenn. LEXIS 73 (1914), questioned, 51 Tenn. App. 175, 365 S.W.2d 902, 1962 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1962). See also Artenberry v. Railroad, 103 Tenn. 266, 52 S.W. 878, 1899 Tenn. LEXIS 103 (1899); Louisville & N. R. Co. v. Ross, 2 Tenn. App. 384, 1926 Tenn. App. LEXIS 35 (1926); Southern Ry. v. Harris, 9 Tenn. App. 589, 1929 Tenn. App. LEXIS 115 (1929); Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.W.2d 26, 1933 Tenn. App. LEXIS 3 (1933); Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

The onus of the statute is lifted when the railroad shows it had done all that it was required to do thereunder, and that the accident was unavoidable. But, when impossibility and unavoidableness arise out of the default of the railroad, liability still exists. Majestic v. Louisville & N. R. Co., 147 F.2d 621, 1945 U.S. App. LEXIS 2180 (6th Cir. Tenn. 1945); Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

8. — —Unreasonable Application.

A case will not be included within the universality of language used in this statute when to do so will in no conceivable way aid the purpose of the statute or advance the remedy and will involve an entirely unreasonable and improbable legislative intent. Southern R. Co. v. Matthews, 29 F.2d 52, 1928 U.S. App. LEXIS 2610 (6th Cir. Tenn. 1928), cert. denied, 279 U.S. 844, 49 S. Ct. 264, 73 L. Ed. 989, 1929 U.S. LEXIS 178 (1929), cert. denied, Matthews v. Southern R. Co., 279 U.S. 844, 49 S. Ct. 264, 73 L. Ed. 989, 1929 U.S. LEXIS 178 (1929).

The provisions of this section do not apply where their application would be unreasonable or impracticable. Gordon v. Tennessee C. R. Co., 167 Tenn. 302, 69 S.W.2d 611, 1933 Tenn. LEXIS 41 (1934).

9. — —Impossibility of Compliance.

Where the impossibility to comply with the statute and the unavoidableness of the accident arise out of the default of a railroad company, it will not be excused for its noncompliance with the statute, and will not be relieved from liability. Nashville & C. R.R. Co. v. Anthony, 69 Tenn. 516, 1878 Tenn. LEXIS 129 (1878); East T., V. & G. R.R. Co. v. Selcer, 75 Tenn. 557, 1881 Tenn. LEXIS 152 (1881); Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900).

The provisions of this and the succeeding section are inapplicable to the operation of trains where, because of the locality or existing conditions, compliance with the statute is impossible, as where engines or cars are being switched and are necessarily being pushed instead of pulled by the engine. Towles v. Southern R. Co., 103 F. 405, 1900 U.S. App. LEXIS 4816 (C.C.D. Tenn. 1900).

The statutory precautions for the prevention of accidents on railroads do not apply where it is impossible to comply therewith, or wholly impracticable, consistently with the operation of the road, as in cases of switching operations, or where it is necessary in or about the yards to push cars with the engine moving backwards; but the railroad company cannot be excused by “impracticability” which it unnecessarily causes or tolerates. Where the plaintiff's intestate was struck and killed at a street crossing by cars being so pushed, on a track extending along a cross street, extending from the terminal of one railroad to that of another, to which the cars, with their loads, were being transferred, it was a question of fact whether the situation was such as to make the statute applicable, and evidence as to the length of the transfer track, the extent of its use, the character of the country traversed, and the means or practicability of transferring the engine around, so as to return on the track if it preceded the cars, was relevant and admissible, and its rejection constituted reversible error. St. Louis & S. F. R. Co. v. Rutland, 207 F. 287, 1913 U.S. App. LEXIS 1625 (6th Cir. Tenn. 1913), cert. denied, 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913), cert. denied, Rutland v. St. Louis & S. F. R. Co., 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913).

Where heavy fog prevented engineer and fireman from seeing more than 10 or 15 feet ahead and therefore prevented them from seeing truck stalled on track at crossing, suit could not be maintained for violation of this section under such circumstances. Nashville, C. & S. L. Ry. v. Smith, 33 Tenn. App. 45, 228 S.W.2d 495, 1949 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1949).

10. — —Duty to Passengers.

The means employed to stop the train should not be such as would cause imminent risk and danger to the passengers, but a slight increase of the danger to the passengers will be no excuse for failing to follow the positive mandate of the statute. The employees of the railroad company will not be allowed to excuse themselves from failing to comply with the positive requirements by the mere expression of an opinion that to do so would endanger the passengers. The nature and extent of that danger should be clearly shown. Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Memphis & C.R.R. v. Smith, 56 Tenn. 860, 1872 Tenn. LEXIS 214 (1872); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

The duty of railroad companies to carry their passengers safely is paramount to all others, and is superior to the statutory requirements and precautions; and the statutory precautions should not be observed, when to do so would imminently imperil the lives and limbs of passengers and employees on the train; but these precautions should be observed when human life is in danger on the road, and the probability of slight injuries to passengers and employees, or even serious injuries growing out of unusual positions which they may at the time occupy, will not excuse the observance of such precautions for the protection of the life of a trespasser. Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

11. — —Effect of Speed.

The paramount object of the statute is the protection of human life, and the protection of property is a secondary consideration. Therefore, where the train is moving at such a rate of speed at the time of the collision, or the circumstances of its situation are such that it would be dangerous to the lives and limbs of the passengers and persons on the train to reverse the engine, the engineer in charge is not bound to do so, and should not do so, although such action might prevent the accident or collision. Under such circumstances, the railroad company will not be liable for the consequence of not reversing the engine. Routon v. Louisville & N.R.R., 1 Shan. 528 (1875); Nashville & C.R.R. v. Troxlee, 69 Tenn. 520, 1878 Tenn. LEXIS 130 (1878); East T., V. & G. R.R. Co. v. Selcer, 75 Tenn. 557, 1881 Tenn. LEXIS 152 (1881); Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62, 1911 Tenn. LEXIS 22 (1911).

Where an animal has been chased by an engine where the road is fenced on both sides, though during all this time the animal is in the ditch by its side, or so near it as to make a collision probable, it would not be a compliance with the statute for the engineer recklessly to run his engine at full speed, and use no effort to avoid a collision, until the animal, through fright, leaps upon the track. Nashville & C. R.R. Co. v. Anthony, 69 Tenn. 516, 1878 Tenn. LEXIS 129 (1878); East T., V. & G. R.R. Co. v. Selcer, 75 Tenn. 557, 1881 Tenn. LEXIS 152 (1881); Louisville & N.R.R. v. Milam, 77 Tenn. 223, 1882 Tenn. LEXIS 40 (1882); Nashville, C. & St. L. Ry. v. Ford, 139 Tenn. 505, 201 S.W. 755, 1917 Tenn. LEXIS 127 (1917).

There is no statute fixing the rate of speed at which railroad trains shall be run; and the question of reckless or excessive speed is one to be determined by all the facts and circumstances at the time, and not by an arbitrary rule that the speed must not be so great that the train cannot be stopped within the distance an obstruction can be seen by the aid of the headlight. Louisville & N.R.R. v. Milam, 77 Tenn. 223, 1882 Tenn. LEXIS 40 (1882). See Illinois C. R. Co. v. Porter, 117 Tenn. 13, 94 S.W. 666, 1906 Tenn. LEXIS 27 (1906).

A railroad company unquestionably has the right to run special trains, at such times, and at such increased rates of speed within the limits of prudence and safety to its passengers, as the necessities or convenience of its business, general or special, may require; and hence a charge of the court is erroneous in assuming or implying that the running of trains off schedule time or at increased rates of speed is, per se, negligence. East Tenn. & W.N.C.R.R. v. Winters, 85 Tenn. 240, 1 S.W. 790, 1886 Tenn. LEXIS 37 (1886). See Illinois C. R. Co. v. Porter, 117 Tenn. 13, 94 S.W. 666, 1906 Tenn. LEXIS 27 (1906).

As a precaution against injury to persons walking on the track, but not seen or known so to be, there is no duty to slacken the ordinary speed of a train approaching a curve in the open country, although the curve be in whole or in part in a cut, or hidden from view by a train approaching and passing on the concave side of the curve, on a double track railroad. Cincinnati, N.O. & T.P. Ry. v. Wright, 133 Tenn. 74, 179 S.W. 641, 1915 Tenn. LEXIS 75 (1915).

While no rate of speed is of itself negligence, it may be negligent to run a train at a high rate of speed through a populous community and over a much frequented crossing, or over a crossing where the view of the track is so obstructed as to render the approach dangerous. This is true although the crossing at which the accident occurs is in a country district, where the crossing is much used by the public. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

Where there is no statutory regulation fixing the rate of speed of trains, it is a question of fact whether the rate of speed was excessive or dangerous in that locality, and if so found by the jury, and the excessive speed caused the injury, the road is liable. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

Unusual and excessive speed of the train will not afford basis for a recovery unless it is the proximate cause of the injuries. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

12. —Scope of Statute.

13. — —City Railroads.

The statute applies to regular railroads operating their trains over tracks laid in the streets of a city, and they are compelled to comply strictly with all the precautions prescribed by the statute. Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611, 1891 Tenn. LEXIS 15, 25 Am. St. Rep. 681, 13 L.R.A. 185 (1891); Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891); Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897); Harrell v. Alabama G.S.R.R., 5 Tenn. App. 471, 1927 Tenn. App. LEXIS 77 (1927).

14. — —Interurbans.

The same rules apply to interurban electric railroads. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919); Union Traction Co. v. Anderson, 146 Tenn. 476, 242 S.W. 876, 1921 Tenn. LEXIS 28, 25 A.L.R. 1496 (1922); Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.W.2d 26, 1933 Tenn. App. LEXIS 3 (1933).

15. — —Private Railroads.

This statute applies not only to public railroads but also to a private railroad operated by a lumber company over a distance of about 14 miles through a settled country and over public roads. Toomey v. Goad, 12 Tenn. App. 80, 1928 Tenn. App. LEXIS 201 (1928).

16. — —Lessor-Lessee.

A railroad company is not responsible for negligence in the operation of an engine, when, at the time of the accident, the engine and the crew by which it was operated were rented to and under the control of another company. Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894). See also Arrowsmith v. Nashville & D. R. Co., 57 F. 165, 1893 U.S. App. LEXIS 2756 (C.C.D. Tenn. 1893).

17. — —Dummy Lines.

Dummy lines over which trains are drawn by a small steam engine, although exclusively engaged in carrying passengers, whether operated within or without the limits of a city, are railroads within the meaning and purview of this statute. Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611, 1891 Tenn. LEXIS 15, 25 Am. St. Rep. 681, 13 L.R.A. 185 (1891); Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Illinois C. R. Co. v. Hudson, 136 Tenn. 1, 188 S.W. 589, 1916 Tenn. LEXIS 94, 2 A.L.R. 147 (1916).

18. — —Through Trains.

The statute is applicable to a through train on a regular trip in rapid motion, and not engaged in switching, though at the time it be passing through the yards or station grounds of the railroad company. Mobile & O. R. Co. v. House, 96 Tenn. 552, 35 S.W. 561 (1896); Illinois Cent. R.R. v. Abernathey, 106 Tenn. 722, 64 S.W. 3, 1901 Tenn. LEXIS 129 (1901).

19. — —Detached Cars.

The statute has no application to the movement, by impetus or gravitation, of cars detached from the locomotive by the train breaking in two, while going down grade, but the principles of the common law govern in such cases. Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890).

The precautions are not applicable where a train became uncoupled on a sidetrack in the depot grounds and was backing up to recouple. Payne v. Illinois Cent. R.R., 155 F. 73, 1907 U.S. App. LEXIS 4636 (6th Cir. 1907).

This section is not applicable to the operation of a handcar upon railroad track. Gordon v. Tennessee C. R. Co., 167 Tenn. 302, 69 S.W.2d 611, 1933 Tenn. LEXIS 41 (1934).

This statute has no application to the movement by impetus or gravitation of cars detached from the locomotive. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

A gasoline motor car used by a section crew does not come within the purview of the statute. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

20. — —Projecting Material.

Injury from being hit by piece of scantling projecting about six feet from edge of a car loaded with lumber was not within statute. Preslar v. Mobile & O.R.R., 135 Tenn. 42, 185 S.W. 67, 1916 Tenn. LEXIS 11 (1916).

21. — —Movement of Cars.

If by reason of having two engines, one in front and the other in the rear of the train, compliance on the part of the employees of the company is hindered, a case of liability may be made, though if the management of the rear engine had nothing to do with the collision and compliance is otherwise shown, there would be no liability. Chamberlain v. McAlister, 7 Tenn. Civ. App. (7 Higgins) 26 (1916).

22. — — —Backing of Cars.

The statute applies indifferently to all railroad trains, whether they are moving forward or backward, or by means of an engine placed in front or rear, or at an intermediate point in the train. As the precautions can be observed only when the train is moving forward by means of an engine in its front, the railroad company's liability for injuries inflicted by collision with its train moving backward, or by means of an engine placed elsewhere than in front, is absolute, because the railroad company has imposed upon itself the impossibility to observe the statutory precautions. Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891); Railroad v. Acuff, 92 Tenn. 26, 20 S.W. 348, 1892 Tenn. LEXIS 47 (1892); Southern Ry. v. Pugh, 95 Tenn. 419, 32 S.W. 311 (1895); Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897); Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Cincinnati, N.O. & T.P. Ry. v. Davis, 161 F. 334, 1908 U.S. App. LEXIS 4354 (6th Cir. 1908); Belt Ry. v. Vaughn, 16 Tenn. App. 590, 65 S.W.2d 580, 1933 Tenn. App. LEXIS 31 (1933). But see Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904), confining the holding in these cases to situations where the railroad has placed itself in such condition as to be unable to comply with the statute in respect to keeping an effective lookout ahead, and denying recovery where there has been a compliance with the statute by the backing train.

The statute applies even where a deaf and dumb man is killed by a construction train running backward. Railroad v. Acuff, 92 Tenn. 26, 20 S.W. 348, 1892 Tenn. LEXIS 47 (1892).

This statute cannot be complied with unless the engine is in front of the cars in the direction in which they are moving. Nashville, C. & St. L. Ry. v. Lovejoy, 138 Tenn. 492, 198 S.W. 61, 1917 Tenn. LEXIS 59 (1917).

A 16-year-old boy who did not see backing train until it was close upon him and on account of trucks could not stand on the side of the train next to street, and who crossed tracks and stood by building and was brushed by train and injured was negligent but was entitled to recover since duty to maintain lookout could not be observed as train was being backed. Belt Ry. v. Vaughn, 16 Tenn. App. 590, 65 S.W.2d 580, 1933 Tenn. App. LEXIS 31 (1933).

23. — — —Switching Operations.

The precautions prescribed by this statute are not applicable to switching operations within the yards of a railroad company. Common law rules control in such cases. The statute does not apply to a “switchtrain” while no obstruction appears on the track ahead between crossings. The fact that a person who could not be seen suddenly appears on the track, immediately in front of the pilot, as it is passing, does not change the rule. Moran v. Nashville & C.R.R., 61 Tenn. 379, 1872 Tenn. LEXIS 384 (1872); Cox v. Louisville & N.R.R., 1 Shan. 475 (1875); East Tenn., V. & G.R.R. v. Rush, 83 Tenn. 145, 1885 Tenn. LEXIS 34 (1885); Southern Ry. v. Pugh, 95 Tenn. 419, 32 S.W. 311 (1895); Mobile & O. R. Co. v. House, 96 Tenn. 552, 35 S.W. 561 (1896); Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897); Illinois Cent. R.R. v. Abernathey, 106 Tenn. 722, 64 S.W. 3, 1901 Tenn. LEXIS 129 (1901); King v. Tennessee C. R. Co., 129 Tenn. 44, 164 S.W. 1181, 1913 Tenn. LEXIS 93, 51 L.R.A. (n.s.) 618 (1913). See Crowley v. Cincinnati, N.O. & T.P.R.R., 108 Tenn. 74, 65 S.W. 411 (1901).

To avoid the application of the statute, the switching must be done within the switching yards. If the switching is done on the main track, the statute applies. Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905). See Iron M. R. Co. v. Dies, 98 Tenn. 655, 41 S.W. 860 (1897).

Where engines or cars are being switched and are necessarily being pushed instead of pulled by the engine, the provisions of this and the section following do not apply. Towles v. Southern R. Co., 103 F. 405, 1900 U.S. App. LEXIS 4816 (C.C.D. Tenn. 1900).

Where the engine is operated not in switching within the company's yards, but outside of the yards, in transferring cars from its north to its south station, and in delivering cars along its road between such stations or yard limits, the statute for the prevention of accidents on railroads is applicable. Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905).

Where a terminal railway company nightly moved a sleeping car from the station of a certain railroad to its own station, where it was picked up by another railroad company, and for such purpose ran its engine about half a mile on its own track to the junction of its track with that of the certain railroad company, and then back down that company's track about one mile and a half to that company's station, and while so backing within the station limits of that company ran against the plaintiff, it was engaged in a “switching operation,” even though that company was not accustomed to use the tracks in question at that point for switching purposes; and the precautions prescribed by statute for the prevention of accidents on railroads did not apply. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

Mere fact that train was being operated within switching district did not relieve operator of compliance with statutory precautions; it must have been engaged in switching operations. Tennessee C. R. Co. v. Zearing, 2 Tenn. App. 451, — S.W. —, 1925 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1925).

Observance by a railroad company of these statutory precautions is not required in “switching operations.” Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

Engine of one company going into industrial section of city upon tracks of another company to pick up cars was not a switching operation within its yards, depot grounds, or on its sidetracks. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

24. — — — —Evidence or Proof.

In order to avoid the application of the statute in case of switching cars, it must be shown that the accident occurred within the yards. This fact cannot be left to inference from unsatisfactory proof. Louisville & N. R. Co. v. Conner, 61 Tenn. 382, 1872 Tenn. LEXIS 385 (1872).

Where the declaration does not show that the accident occurred in switching operations within the railroad yards, plea and proof of such fact by the railroad company is necessary to preclude the application of the statute. Crowley v. Cincinnati, N.O. & T.P.R.R., 108 Tenn. 74, 65 S.W. 411 (1901).

Where plaintiff's intestate was killed at a street and railway crossing by cars which were being switched on a track extending from the terminal of one railroad to that of another, it was a question of fact whether the situation was such as to make the requirements of this section applicable, and evidence of the surrounding facts and circumstances was admissible. St. Louis & S. F. R. Co. v. Rutland, 207 F. 287, 1913 U.S. App. LEXIS 1625 (6th Cir. Tenn. 1913), cert. denied, 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913), cert. denied, Rutland v. St. Louis & S. F. R. Co., 231 U.S. 755, 34 S. Ct. 323, 58 L. Ed. 468, 1913 U.S. LEXIS 2545 (1913).

Where the evidence showed that a train was being moved from one part of town to another to be turned over to another train crew, and no switching was done during the operation, the train was not switching and was required to exercise all statutory precautions for prevention of accidents. Harrell v. Alabama G.S.R.R., 5 Tenn. App. 471, 1927 Tenn. App. LEXIS 77 (1927).

25. — —Employees.

26. — — —Federal Employees.

The precautions have no application in case of employee under the Federal Employers' Liability Act. Lee v. Tennessee Cent. Ry., 9 Tenn. App. 284, 1928 Tenn. App. LEXIS 233 (1928).

27. — — —Operations of Trains.

In relation to the servants and employees who are moving about or across the tracks in the performance of their duties, the statute is not applicable, when the railroad company is running its engines and cars about its depot and yards, in making up its trains and switching its engines and cars from one track to another. Louisville & N.R.R. v. Robertson, 56 Tenn. 276, 1872 Tenn. LEXIS 141 (1872), overruled in part, McIntyre v. Balentine, 833 S.W.2d 52, 1992 Tenn. LEXIS 336 (Tenn. 1992); Haley v. Mobile & O. R. Co., 66 Tenn. 239, 1874 Tenn. LEXIS 113 (1874); Cox v. Louisville & N.R.R., 1 Shan. 475 (1875); Bradley v. Nashville, C. & St. L. Ry., 82 Tenn. 374, 1884 Tenn. LEXIS 138 (1884); East Tenn., V. & G.R.R. v. Rush, 83 Tenn. 145, 1885 Tenn. LEXIS 34 (1885); Taylor v. Louisville & N.R.R., 93 Tenn. 305, 27 S.W. 663, 1893 Tenn. LEXIS 57 (1893); Cincinnati, N.O. & T.P.R.R. v. Holland, 117 Tenn. 257, 96 S.W. 758, 1906 Tenn. LEXIS 47 (1906); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909); Smith v. Illinois Cent. R.R., 200 F. 553, 1912 U.S. App. LEXIS 1874 (6th Cir. 1912); Southern Ry. v. DeFoe, 6 Tenn. App. 503, 1927 Tenn. App. LEXIS 174 (1927). But see Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905).

The statutory precautions do not apply in favor of the foreman of a railroad construction gang, killed as the result of being struck by a locomotive which he had seen approaching, while he was standing near the track clearing it for the train to pass. Rogers v. Cincinnati, N.O. & T.P. Ry., 136 F. 573, 1905 U.S. App. LEXIS 4493 (6th Cir. 1905).

This and the two following sections are inapplicable where injured person was engaged in the distribution of detached cars, in the “making up” of trains, and in other necessary switching, in and upon the employer's yards, depot grounds and sidetracks. The common law governs such case. Lawson v. Tennessee, A. & G. Ry., 159 F.2d 65, 1947 U.S. App. LEXIS 2434 (6th Cir. 1947).

28. — — —Negligence.

The statute does not apply to a railroad employee, in the regular discharge of his duty, whose negligence or willful act caused, or contributed to cause, the accident or collision. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871). See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); East Tenn., V. & G.R.R. v. Rush, 83 Tenn. 145, 1885 Tenn. LEXIS 34 (1885); Goodlett v. Louisville & N.R.R., 122 U.S. 391, 7 S. Ct. 1254, 30 L. Ed. 1230, 1887 U.S. LEXIS 2119 (1887); Cincinnati, N.O. & T.P.R.R. v. Holland, 117 Tenn. 257, 96 S.W. 758, 1906 Tenn. LEXIS 47 (1906); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

An action will not lie in behalf of the agent of the railroad company, employed in the running of the trains, and whose negligence or willful act caused, or contributed to cause, the accident or collision occasioning him the injury. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); East Tenn., V. & G.R.R. v. Rush, 83 Tenn. 145, 1885 Tenn. LEXIS 34 (1885); Rogers v. Cincinnati, N.O. & T.P. Ry., 136 F. 573, 1905 U.S. App. LEXIS 4493 (6th Cir. 1905); Cincinnati, N.O. & T.P.R.R. v. Holland, 117 Tenn. 257, 96 S.W. 758, 1906 Tenn. LEXIS 47 (1906); Nashville, C. & St. L.R.R. v. Hayes, 117 Tenn. 680, 99 S.W. 362, 1906 Tenn. LEXIS 72 (1906); Louisville & N.R.R. v. Womack, 173 F. 752, 1909 U.S. App. LEXIS 5102 (6th Cir. 1909); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

An employee, guilty of the grossest negligence, cannot recover for the resulting injury when his employer, defendant railroad company, had complied with the provisions of this section. Goodlett v. Louisville & N.R.R., 122 U.S. 391, 7 S. Ct. 1254, 30 L. Ed. 1230, 1887 U.S. LEXIS 2119 (1887).

Where an employee of a railroad company is injured on the tracks, its liability depends on the determination of the questions of negligence and contributory negligence under the rules of the common law. Cincinnati, N.O. & T.P.R.R. v. Holland, 117 Tenn. 257, 96 S.W. 758, 1906 Tenn. LEXIS 47 (1906); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909); Thornton v. Nashville, C. &. St. L. Ry., 5 Tenn. App. 6, 1927 Tenn. App. LEXIS 29 (1927).

29. — —Guests.

Where the driver of an automobile was negligent in proceeding over a railroad crossing, and the railroad company's servants in charge of a train which struck the automobile were also negligent in failing to give warning signals or to maintain a lookout, both the driver and the railroad company are liable as joint tortfeasors to a guest in the motor car, who was injured, for their concurrent negligence produced the injury. Tennessee C. R. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225, 1920 Tenn. LEXIS 22 (1920).

Passenger in automobile who knew of danger of crossing and who insisted that her husband, rather than the chauffeur, drive across the track, is contributorily negligent when she failed to keep a lookout for trains. Klein v. Illinois C. R. Co., 4 Tenn. App. 563, — S.W. —, 1927 Tenn. App. LEXIS 208 (Tenn. Ct. App. 1927).

Ordinarily a guest may rely upon the driver and need not object unless the danger is obvious. Southern Ry. v. Harris, 9 Tenn. App. 589, 1929 Tenn. App. LEXIS 115 (1929).

Where the matter of a guest's negligence is debatable, the question is one for the jury. Southern Ry. v. Harris, 9 Tenn. App. 589, 1929 Tenn. App. LEXIS 115 (1929).

30. — —Trespassers.

The mere fact that a party is a trespasser upon the railroad track and is injured while thereon, or while contributing to the injury by his own negligence, will not prevent him from recovering damages for injuries negligently inflicted by the railroad company, if the injuries might have been averted by the use of ordinary care on the part of the company. East Tenn., V. & G.R.R. v. Fain, 80 Tenn. 35, 1883 Tenn. LEXIS 137 (1883); East Tenn., V. & G.R.R. v. Humphreys, 80 Tenn. 200, 1883 Tenn. LEXIS 158 (1883), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890); Felton v. Newport, 92 F. 470, 1899 U.S. App. LEXIS 2158 (6th Cir. 1899), aff'd, Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900); Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

A railroad company is not relieved from the duties imposed by this section, nor from liability, because the person injured was a trespasser. Felton v. Newport, 92 F. 470, 1899 U.S. App. LEXIS 2158 (6th Cir. 1899), aff'd, Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900); Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

The plaintiff, employee of a coal company engaged in weighing coal cars on defendant railroad company's right of way, injured while walking on the track in going from the scales to the office, cannot complain of the railroad company's failure to signal the approach of a backing train, where he saw the train when it started to back in time to get out of the way, but was unable to move because his foot was caught between a tie and switch rod, the train being engaged in a switching movement so as to make the statute inapplicable. Nashville, C. & St. L. Ry. v. Lovejoy, 138 Tenn. 492, 198 S.W. 61, 1917 Tenn. LEXIS 59 (1917).

An employee of a railroad company, engaged in inspecting the cars of his employer and directed by his employer also to examine cars on the tracks of another railroad company, when observed on his way over such tracks to his employer's tracks, but not authorized by the other railroad company to go on its tracks for such purpose, and it not appearing that his employer company had any such authority over the property of the other railroad company, was “trespasser” on such tracks. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

The fact that a person injured in the switching yards of a railroad company, where the company was engaged in switching, was a trespasser on the track, will not prevent a recovery, for the rule as to trespassers injured in the yards of a railroad company while the company is switching is the same with respect to a stranger as to the employees of a railroad company. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

31. — —Passengers.

The statute has no application to persons while on the train. The common law applies to passengers and property on the train. Louisville & N.R.R. v. McKenna, 75 Tenn. 313, 1881 Tenn. LEXIS 122 (1881).

32. — —Animals.

33. — — —Effect of Railroad Fencing Acts.

The provisions of this section, were greatly modified, and in a large measure superseded, by the railroad fencing statute, § 65-1223 (since repealed), as to animals killed on unfenced railroads. Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Railroad v. Russell, 92 Tenn. 108, 20 S.W. 784, 1892 Tenn. LEXIS 55 (1892); Railroad v. Stonecipher, 95 Tenn. 311, 32 S.W. 208, 1895 Tenn. LEXIS 89 (1895); Mobile & O. R. Co. v. House, 96 Tenn. 552, 35 S.W. 561 (1896); Mobile & O.R.R. v. Tiernan, 102 Tenn. 704, 52 S.W. 179 (1899); Louisville & N.R.R. v. Patton, 104 Tenn. 40, 54 S.W. 984, 1899 Tenn. LEXIS 7 (1899). See also Briggs v. Clawson Bros., 8 Tenn. App. 251, — S.W.2d —, 1928 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1928).

34. — — —Trespassing Stock.

The injuries must be such as may be directly produced by the train, and not such as stock may inflict upon themselves, without collision with the train, in the fright occasioned by the running of the train in the legitimate exercise of the company's franchises. Holder v. Chicago, St. L. & N.O.R.R., 79 Tenn. 176, 1883 Tenn. LEXIS 36 (1883); Louisville N. & G. S. R.R. Co. v. Reidmond, 79 Tenn. 205, 1883 Tenn. LEXIS 44 (1883); Railroad v. Sadler, 91 Tenn. 508, 19 S.W. 618, 1892 Tenn. LEXIS 21, 30 Am. St. Rep. 896 (1892); Railroad v. Phillips, 100 Tenn. 130, 42 S.W. 925, 1897 Tenn. LEXIS 96 (1897); Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

A railroad company is not liable for the value of dogs killed, when trespassing upon its track, where the statutory precautions are observed. Fink v. Evans, 95 Tenn. 413, 32 S.W. 307, 1895 Tenn. LEXIS 109 (1895).

35. —Pleadings.

A declaration which avers that the servants of a railroad company wrongfully and negligently ran its train over a person gives notice that it was contrary to the statute, though no reference is made to the statute. East Tenn., V. & G.R.R. v. Pratt, 85 Tenn. 9, 1 S.W. 618, 1886 Tenn. LEXIS 3 (1886); Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Crowley v. Cincinnati, N.O. & T.P.R.R., 108 Tenn. 74, 65 S.W. 411 (1901); Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

A declaration averring, in general terms only, that “the defendant wrongfully and negligently killed the deceased,” without stating the facts constituting the negligence, in an action for damages for such killing, is bad on demurrer. Chattanooga Cotton-Oil Co. v. Shamblin, 101 Tenn. 263, 47 S.W. 496, 1898 Tenn. LEXIS 60 (1898). But see Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900).

The declaration in an action seeking a recovery for the defendant's alleged wrongful and negligent killing of the plaintiff's intestate need not negative negligence or fault on the part of the deceased. Illinois Cent. R.R. v. Davis, 104 Tenn. 442, 58 S.W. 296, 1900 Tenn. LEXIS 15 (1900). See Stewart v. Nashville, 96 Tenn. 50, 33 S.W. 613, 1895 Tenn. LEXIS 7 (1895).

Where the first count in the declaration alleges the defendant railroad company's failure to comply with the statutory precautions, and the second count is substantially the same, with the omission of allegations of noncompliance with the statutory precautions, both counts may state a cause of action under the statute requiring the railroad company to show a compliance. The facts alleged show whether or not the statutory precautions were applicable, and if applicable, the railroad is required to show compliance therewith without specific allegation of noncompliance. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

A declaration distinctly showing a collision with an object or person on the track at a crossing, or that the action is based distinctly on subdivisions (2) and (3) (deleted by amendment), indicates an unmistakable purpose to base the action upon the statute, and not upon the common law, for these statutory provisions are not concurrent with the common law. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916); Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

A count in the declaration, alleging that the defendant with its engine wrongfully and negligently backed its cars upon and over the plaintiff, put in issue the violation of this statute. Nashville, C. & St. L. Ry. v. Lovejoy, 138 Tenn. 492, 198 S.W. 61, 1917 Tenn. LEXIS 59 (1917).

A declaration alleging that defendant unlawfully, wrongfully, and negligently ran one of his engines into and against and over plaintiff, injuring him as therein set forth, was drawn under the statute and invoked the application of the precautions prescribed by statute for the prevention of accidents on railroads. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

36. — —Common Law and Statutory Counts.

This statute and the common law are concurrent, and a count framed under the statute may go further and also include averments of additional common law negligence, and the count should then be treated as one wholly under the common law. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907); Kennedy v. Southern Ry., 2 Tenn. Civ. App. (2 Higgins) 103 (1911); Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

Under a count charging common law negligence, evidence of noncompliance with statute is inadmissible. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907); Ori v. St. Louis S. F. R. Co., 48 Tenn. App. 448, 348 S.W.2d 809, 1961 Tenn. App. LEXIS 86 (1961).

A count in an action for personal injuries, under this statute, is a count under the common law, unless it is further charged that the person or object on the track was struck by a moving train, which allegation of collision with a moving train is necessary to bring the count within § 65-12-109; and where the warrant did not charge that the train struck the plaintiff or her wagon, and it appeared that she jumped from the wagon, whereby she was injured without collision with the train, the action was under the common law, and there was no absolute liability for the railroad company's failure to observe the precautions. Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

Where, in an action to recover for injuries alleged to have been sustained, it is not charged in the complaint that the train struck plaintiff or her wagon and it appears that she jumped from the wagon, the action is under the common law and there is no absolute liability for failure to take the specified statutory precautions. Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

If, in a declaration based on the statute, there be also inserted in a single count averments based upon the common law, the effect will not be to convert the whole declaration into a common law pleading, but to lay it open to a demurrer for duplicity. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

The common law and the statutory causes of action for personal injuries on a railroad crossing may both exist in the same case, but it is required that they shall each be presented in separate counts. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916); Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954); Ori v. St. Louis S. F. R. Co., 48 Tenn. App. 448, 348 S.W.2d 809, 1961 Tenn. App. LEXIS 86 (1961).

37. — —Amendments.

Action of the trial court in allowing the plaintiff to amend his declaration so as to transfer from the other counts all the averments of common law negligence and put them in an additional count, thus separating them from the averments of statutory negligence in the other counts, was not error. Tennessee C. R. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225, 1920 Tenn. LEXIS 22 (1920).

38. — —Evidence.

Under a count declaring under this statute, evidence of noncompliance with the precautions herein prescribed is admissible, but under a count charging common law negligence, such evidence is inadmissible. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

39. —Negligence.

The use of the term “conduct” in connection with negligent conduct, and in that sense as the cause of the injury, is not erroneous. Cherokee Packet Co. v. Hilson, 95 Tenn. 1, 31 S.W. 737, 1895 Tenn. LEXIS 59 (1895).

The language of former § 65-1210 was explicit and certain, the railroad was required to show strict compliance with the statute to absolve itself of negligence and even contributory negligence on the part of a person injured did not excuse a strict compliance. Majestic v. Louisville & N. R. Co., 147 F.2d 621, 1945 U.S. App. LEXIS 2180 (6th Cir. Tenn. 1945).

40. — —Contributory Negligence at Common Law.

Where the common law is applicable, a person injured as the result of his own recklessness, or by his own willful act, cannot recover damages. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); East Tenn., V. & G.R.R. v. Smith, 2 Shan. 1 (1876); Chesapeake, O. & S.W.R.R. v. Foster, 88 Tenn. 671, 13 S.W. 694 (1890); See Nashville, C. & St. L.R.R. v. Hayes, 117 Tenn. 680, 99 S.W. 362, 1906 Tenn. LEXIS 72 (1906); Moore v. Chattanooga Elec. Ry., 119 Tenn. 710, 109 S.W. 497, 1907 Tenn. LEXIS 32, 16 L.R.A. (n.s.) 978 (1907).

In those cases where the statute was not applicable, the burden of proof remained as it was, and the effect of contributory negligence continued to be the same as it was at common law. Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891).

Where the action for injuries on a railroad crossing is based on the common law, the burden of proof is on the plaintiff to show not only the infliction of the injuries, but also the negligence or wrongdoing of the company. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

Where the rights of the parties are to be settled by the common law, the rule is that where the negligence of the party injured contributed proximately to his own injury, either alone or in conjunction with that of the railroad company, there can be no recovery. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917); Tennessee C. R. Co. v. Zearing, 2 Tenn. App. 451, — S.W. —, 1925 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1925). See also Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

In a common law action for damages for injury at crossing, it was held that the fact that plaintiffs were riding in an automobile and that one of them was the guest of the others did not change their duty to exercise due care for their own safety. This duty is personal to each one. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

41. — —Contributory Negligence Under Statute.

Contributory negligence, even gross and directly and proximately contributing to the accident, will not defeat an action based upon the statute, but will go only in mitigation of the damages, whether compensatory or exemplary, where the railroad company fails to comply with the required precautions, when it is possible for it to do so, whether its failure to comply with the statute is the cause of the accident or not. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Smith v. Nashville & C.R.R., 46 Tenn. 589, 1869 Tenn. LEXIS 104 (1869); Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Hill v. Louisville & N. R. Co., 56 Tenn. 823, 1872 Tenn. LEXIS 210 (1872); Railroad v. Walker, 58 Tenn. 383, 1872 Tenn. LEXIS 271 (1872), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Nashville & C.R.R. v. Smith, 58 Tenn. 455, 1872 Tenn. LEXIS 285 (1872); East Tenn., V. & G.R.R. v. Smith, 2 Shan. 1 (1876); Louisville & N.R.R. v. Gardner, 69 Tenn. 688, 1878 Tenn. LEXIS 159 (1878); Dush v. Fitzhugh, 70 Tenn. 307, 1879 Tenn. LEXIS 180 (1879), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); E. T. V. & G. R.R. v. White, 73 Tenn. 540, 1880 Tenn. LEXIS 178 (1880); Nashville & C. R. Co. v. Smith, 77 Tenn. 470, 1882 Tenn. LEXIS 85 (1882); East Tenn., V. & G.R.R. v. Fain, 80 Tenn. 35, 1883 Tenn. LEXIS 137 (1883); East Tenn., V. & G.R.R. v. Humphreys, 80 Tenn. 200, 1883 Tenn. LEXIS 158 (1883), criticized, Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Louisville, N. & G. S. R.R. Co. v. Fleming, 82 Tenn. 128, 1884 Tenn. LEXIS 115 (1884); Chesapeake, O. & S.W.R.R. v. Foster, 88 Tenn. 671, 13 S.W. 694 (1890); Patton v. Railway Co., 89 Tenn. 370, 15 S.W. 919, 1890 Tenn. LEXIS 59, 12 L.R.A. 184 (1890); Louisville & N.R.R. v. Wallace, 90 Tenn. 53, 15 S.W. 921, 1890 Tenn. LEXIS 101 (1890); Louisville & N. R. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116, 1891 Tenn. LEXIS 4 (1891); Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891); Railroad v. Acuff, 92 Tenn. 26, 20 S.W. 348, 1892 Tenn. LEXIS 47 (1892); Western & A. R. Co. v. Roberson, 61 F. 592, 1894 U.S. App. LEXIS 2210 (6th Cir. Tenn. 1894); Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605, 1894 U.S. App. LEXIS 2211, 24 L.R.A. 693 (6th Cir. Tenn. 1894); Southern R.R. v. Pugh, 97 Tenn. 624, 37 S.W. 555, 1896 Tenn. LEXIS 189 (1896), questioned, McIntyre v. Balentine, 833 S.W.2d 52, 1992 Tenn. LEXIS 336 (Tenn. 1992); Saunders v. City & Suburban R.R., 99 Tenn. 130, 41 S.W. 1031, 1897 Tenn. LEXIS 19 (1897); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); Barr v. Southern St. Ry., 105 Tenn. 544, 58 S.W. 849 (1900); Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900); Louisville & N.R.R. v. Truett, 111 F. 876, 1901 U.S. App. LEXIS 4441 (6th Cir. 1901); Nashville Ry. v. Norman, 108 Tenn. 324, 67 S.W. 479, 1901 Tenn. LEXIS 33 (1901), questioned, McIntyre v. Balentine, 833 S.W.2d 52, 1992 Tenn. LEXIS 336 (Tenn. 1992); Louisville & N. R. Co. v. Summers, 125 F. 719, 1903 U.S. App. LEXIS 4210 (6th Cir. Tenn. 1903), cert. denied, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904), cert. denied, Louisville & N. R. Co. v. Summers, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912); Tennessee C. R. Co. v. Page, 153 Tenn. 84, 282 S.W. 376, 1925 Tenn. LEXIS 7 (1926); Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954); Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955); Illinois C.R.R. v. Perkins, 223 Miss. 891, 79 So. 2d 459, 1955 Miss. LEXIS 453 (1955).

Contributory negligence of a person who was killed by train while walking on a track was not affected by a general custom to use track for a footway, or by the question whether the deceased knew that trains were due at the time. Louisville & N.R.R. v. McClish, 115 F. 268, 1902 U.S. App. LEXIS 4205 (6th Cir. 1902).

With respect to the burden of proof and the effect of contributory negligence, the statute changed the rule of the common law. Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611, 1891 Tenn. LEXIS 15, 25 Am. St. Rep. 681, 13 L.R.A. 185 (1891); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909).

The liability resulting from failure of the railroad company to observe the statutory precaution prescribed is not defeated by the contributory negligence of the person injured. Southern R. Co. v. Koger, 219 F. 702, 1915 U.S. App. LEXIS 1660 (6th Cir. Tenn. 1915), cert. denied, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915), cert. denied, Southern R. Co. v. Koger, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915).

The causal connection between the violation of the penal statute and the accident, and generally the conduct of both parties, is looked to, to determine liability, and if the negligence of plaintiff is imputed solely from the violation of a statute, and he in fact exercised his intelligence and senses, and acted as a reasonably prudent man to avoid injury, such violation of the statutes without more would not bar recovery for an injury flowing from the wrongful act of defendant. Tennessee C. R. Co. v. Page, 153 Tenn. 84, 282 S.W. 376, 1925 Tenn. LEXIS 7 (1926).

The plaintiff can recover in a case where the statute is applicable, “irrespective of his own contributory negligence, however great”; and this construction as to the absolute character of the statutory liability has been repeatedly followed by the United States Circuit Court of Appeals. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

42. — —Gross Negligence.

Contributory negligence on the part of the injured person goes only in mitigation of damages; however, if the person killed on the track was grossly negligent, the jury may mitigate the damages to nominal damages only, but they need not do so. Cincinnati, N.O. & T.P. Ry. v. Davis, 127 F. 933, 1904 U.S. App. LEXIS 3847 (6th Cir. 1904). Compare N. C. & S. L. Railway Co. v. Overcast, 3 Tenn. Civ. App. (3 Higgins) 235 (1912), holding that the plaintiff guilty of gross contributory negligence is entitled to recover substantial damages, and is not confined to nominal damages.

The negligence of a person on a railroad track, within the railroad station limits on a very dark night, in failing to look and listen when he did not know when an engine or train might appear on the track, is “gross negligence,” and peremptory instructions for the defendant should have been granted. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

43. — —Effect on Railroad's Liability.

The damages are to be diminished according as the contributory negligence is found to be slight or gross. Nashville & C.R.R. v. Nowlin, 69 Tenn. 523, 1878 Tenn. LEXIS 131 (1878).

The condition and conduct, the carelessness, recklessness, and the imprudence of the injured person may be considered in assessing the damages resulting from the injury. Louisville & N. R. Co. v. Conner, 61 Tenn. 382, 1872 Tenn. LEXIS 385 (1872); East Tenn., V. & G.R.R. v. Fain, 80 Tenn. 35, 1883 Tenn. LEXIS 137 (1883); Artenberry v. Railroad, 103 Tenn. 266, 52 S.W. 878, 1899 Tenn. LEXIS 103 (1899).

Contributory negligence on the part of the injured person does not necessarily restrict recovery to nominal damages, but instead the jury is given a wide discretion to fix the damages in accordance with their estimate of the relative negligence of the parties, where both are negligent. Felton v. Newport, 105 F. 332, 1900 U.S. App. LEXIS 3833 (6th Cir. 1900).

Contributory negligence on the part of the injured person is not a complete defense, but goes in mitigation of damages. Louisville & N.R.R. v. Truett, 111 F. 876, 1901 U.S. App. LEXIS 4441 (6th Cir. 1901); Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Southern R. Co. v. Koger, 219 F. 702, 1915 U.S. App. LEXIS 1660 (6th Cir. Tenn. 1915), cert. denied, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915), cert. denied, Southern R. Co. v. Koger, 238 U.S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, 1915 U.S. LEXIS 1650 (1915); Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917); Tennessee C. R. Co. v. Zearing, 2 Tenn. App. 451, — S.W. —, 1925 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1925); Tennessee C. R. Co. v. Page, 153 Tenn. 84, 282 S.W. 376, 1925 Tenn. LEXIS 7 (1926).

Contributory negligence, however gross, will not operate as a bar to the action, but only goes in mitigation of damages. Howard & Herrin v. Nashville, C. & S. L. R. Co., 3 Tenn. App. 174, — S.W. —, 1926 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1926).

Driving an automobile upon a railroad track, contrary to provisions of Acts 1917, ch. 36, is gross negligence, and if the violation of the statute is the proximate cause of a collision, this conduct should always be charged to plaintiff in mitigation of damages and in extreme cases might reduce the recovery to nominal damages; but the violation of such statute cannot be set up as altogether excusing the railroad of the imperative duty imposed upon it to observe statutes intended to protect life and property. Southern Ry. v. Brubeck, 6 Tenn. App. 493, 1927 Tenn. App. LEXIS 173 (1927).

Although the railroad may be and is liable because of the failure to comply with the statutes, yet the contributory negligence of the party suing will go in reduction of damages. Cincinnati, N.O. & T.P. Ry. v. Wilson, 294 Ky. 698, 172 S.W.2d 585, 1943 Ky. LEXIS 530 (1943).

While ordinarily contributory negligence when the proximate cause of an injury defeats recovery, a plaintiff's negligence, even though the direct and proximate cause of his injury, will not bar his recovery against a railroad which has failed to observe the precautions required by the statute. Alabama G. S. R. Co. v. Brookshire, 166 F.2d 278, 1948 U.S. App. LEXIS 2332, 1 A.L.R.2d 612 (6th Cir. Tenn. 1948).

44. — —Instructions.

Contributory negligence mitigates the damages as a matter of law, and not merely in the discretion of the jury; and a charge of the court that “the negligence of the deceased may be considered by the jury in mitigation of damages” contains affirmative and prejudicial error. Nashville & C.R.R. v. Nowlin, 69 Tenn. 523, 1878 Tenn. LEXIS 131 (1878); Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S.W. 418, 1904 Tenn. LEXIS 25 (1905); Louisville & N.R.R. v. Cheatham, 118 Tenn. 160, 100 S.W. 902, 1906 Tenn. LEXIS 89 (Tenn. Dec. 1906).

Where the plaintiff is guilty of contributory negligence, under the uncontroverted facts, the trial judge should instruct the jury that the plaintiff is guilty of contributory negligence as a matter of law, and that they must mitigate the damages on account of such negligence; and should not use language that might impress the jurors that they may or may not mitigate the damages as they see fit. N. C. & S. L. Railway Co. v. Overcast, 3 Tenn. Civ. App. (3 Higgins) 235 (1912).

An instruction simply that the contributory negligence of the deceased “can go only to the reduction of damages” is not erroneous, because the jury understood from this instruction that such contributory negligence could not, under the statute, abate the action. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

45. —Evidence and Burden of Proof.

Where the statute was applicable, the burden of proof rested upon the railroad company to show affirmatively due observance of the required statutory precautions, or that such observance was impossible, without its default, and that it was guilty of no negligence in providing effectual means for the prevention of accidents, and that the accident was unavoidable, in order to avoid liability for damages resulting from the accident. Horne v. Memphis & O.R.R., 41 Tenn. 72, 1860 Tenn. LEXIS 17 (1860); Nashville & C.R.R. v. Fugett, 43 Tenn. 402, 1866 Tenn. LEXIS 68 (1866); Smith v. Nashville & C.R.R., 46 Tenn. 589, 1869 Tenn. LEXIS 104 (1869); Nashville & C.R.R. v. Smith, 53 Tenn. 174, 1871 Tenn. LEXIS 339 (Tenn. Sep. 30, 1871); Louisville & N. R. Co. v. Connor, 56 Tenn. 19, 1871 Tenn. LEXIS 423 (1871); Burke v. Louisville & N.R.R., 54 Tenn. 451, 1872 Tenn. LEXIS 72, 19 Am. Rep. 618 (1872); Memphis & C.R.R. v. Smith, 56 Tenn. 860, 1872 Tenn. LEXIS 214 (1872); Louisville & N.R.R. v. Parker, 59 Tenn. 49, 1873 Tenn. LEXIS 25 (1873); Louisville & N.R.R. v. Gardner, 69 Tenn. 688, 1878 Tenn. LEXIS 159 (1878); Sommers v. Mississippi & T.R.R., 75 Tenn. 201, 1881 Tenn. LEXIS 96 (1881); East Tenn., V. & G.R.R. v. Stewart, 81 Tenn. 432, 1884 Tenn. LEXIS 55 (1884); Little Rock & M.R.R. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 1891 Tenn. LEXIS 18, 25 Am. St. Rep. 693, 13 L.R.A. 364 (1891); Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737, 1900 Tenn. LEXIS 86 (1900); St. Louis & S.F.R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692, 1909 Tenn. LEXIS 7 (1909); Tennessee C. R. Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59, 1912 Tenn. LEXIS 11 (1912).

Former § 65-1210 imposing upon railroad companies the burden of proof to show the observance of the precautions was constitutional, and was sanctioned by the police power. Louisville & N. R. Co. v. Burke, 46 Tenn. 45, 1868 Tenn. LEXIS 68 (1868), overruled, Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); See Nashville & C. R. Co. v. Prince, 49 Tenn. 580, 1871 Tenn. LEXIS 47 (1871); Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912).

The engineer of a railroad company cannot state his mere conclusion of facts to the jury that he did all in his power to prevent the accident. He must state the facts. The jury are the judges as to whether what he did do was all he could do in the premises. Fitch v. Louisville & N.R.R., 3 Shan. 676 (1875). But see Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928); Casteel v. Southern Ry., 187 Tenn. 586, 216 S.W.2d 321, 1948 Tenn. LEXIS 470 (1948).

Where there is no eyewitness to the accident, it is not competent for the defendant to introduce evidence tending to show that the deceased was in the habit of jumping on moving trains near the place where his body was found, for the purpose of raising an inference that his death resulted from an attempt to jump on the train on the particular occasion, but the testimony should be confined to the acts and conduct of the deceased on the particular occasion in issue, such as are competent and capable of being directly or circumstantially proved. Louisville & N.R.R. v. McClish, 115 F. 268, 1902 U.S. App. LEXIS 4205 (6th Cir. 1902).

Evidence as to compliance though negative in form may be positive in nature, as where a witness positively asserts that there was no act of compliance. Cincinnati, N.O. & T.P.R.R. v. Abbott, 5 Tenn. Civ. App. (5 Higgins) 22 (1914).

Evidence with respect to not sounding the whistle or bell is negative in form, though it is not necessarily so in substance, for while negative in form, it may be positive in its nature, as where a witness positively testifies that an alleged occurrence did not take place. The rule that positive evidence neutralizes and destroys negative evidence is not of universal application. The comparative weight and value of the positive and negative evidence must generally be submitted to the jury, without instructions that the one species is entitled to greater weight than the other, unless the evidence called negative is purely of that nature, such as the result of inattention. Cincinnati, N.O. & T.P.R.R. v. Abbott, 5 Tenn. Civ. App. (5 Higgins) 22 (1914).

In action for death on railroad track, circumstantial evidence was sufficient to make out a prima facie case against the railroad company, under the statute. Crowe v. Birmingham & N.W.R.R., 2 Tenn. App. 634, 1925 Tenn. App. LEXIS 114 (1925).

46. —Jury Questions.

A peremptory direction of verdict for defendant should not be made where there was evidence tending to prove that there was no sounding of the whistle or bell and that no proper lookout ahead was kept on the engine, as required by subdivision (3). Louisville & N. R. Co. v. Summers, 125 F. 719, 1903 U.S. App. LEXIS 4210 (6th Cir. Tenn. 1903), cert. denied, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904), cert. denied, Louisville & N. R. Co. v. Summers, 192 U.S. 607, 24 S. Ct. 851, 48 L. Ed. 585, 1904 U.S. LEXIS 1001 (1904).

It was for the jury to say whether the plaintiff acted with reasonable prudence and caution in jumping from the wagon threatened to be struck with a rapidly moving train, instead of trusting her safety to the speed of the horses, as the driver of the team did, and escaped injury. Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915).

Where the evidence tends to show that neither the driver of the automobile nor the deceased could see the train in time to avoid the accident, it is for the jury to decide the questions whether the railway company was negligent and whether the deceased was contributorily negligent. Tennessee Cent. Ry. v. Dunn, 24 Tenn. App. 383, 145 S.W.2d 543, 1940 Tenn. App. LEXIS 42 (Tenn. App. Apr. 27, 1940).

When undisputed facts with all reasonable inferences to be drawn therefrom, lead to one conclusion, about which reasonable minds would not differ, that every possible means were employed to stop the train and prevent an accident after the obstruction appeared on the track, the case does not present a factual issue to be submitted to the jury. Southern Ry. v. Elliott, 250 F.2d 740, 1958 U.S. App. LEXIS 3495 (6th Cir. 1958).

47. —Instructions.

The court's charge that if the company complied with the statute, the plaintiff, if guilty of contributory negligence, directly or proximately contributing to the injury, cannot recover, was erroneous if construed to authorize the jury to inquire, after finding that the company had done everything required of it by statute, whether the plaintiff was guilty of negligence, and to require the jury to find that he was so guilty before the company could be exonerated from liability, and was of a nature calculated to confuse the jury. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

In an action based upon the defendant railroad company's statutory liability, it is error to charge anything upon the common-law liability, except insofar as the statute is concurrent with the common law, for such charge on the distinct common-law liability inevitably tends to confuse the jury. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368, 1906 Tenn. LEXIS 79 (1907).

Where the declaration is under the statute, and a paragraph of the declaration attempts to state a common-law action, instructions that it was the duty of the defendant railroad to exercise “a high degree of vigilance and caution, commensurate with the dangerous character of said crossing,” by employing every means at its command as its train approached the crossing within the corporate limits of a town, were erroneous, because the statute covered the ground, and no other precautions could be required. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916).

In a common-law action against a railroad company for damages resulting from being struck by train, court properly refused to instruct jury that defendant did not have to give warning or put on brakes until plaintiff's truck became an obstacle on track or within striking distance of the train. Tennessee C. R. Co. v. Hayes, 9 Tenn. App. 116, — S.W.2d —, 1928 Tenn. App. LEXIS 222 (Tenn. Ct. App. 1928), overruled in part, Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 2008 Tenn. LEXIS 863 (Tenn. Nov. 14, 2008).

In statutory action for death, it was error to instruct that contributory negligence would reduce the recovery to nominal damages. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

Where a declaration is based on a common-law count and a statutory count, it was proper to refuse instructions correct as to one count but incorrect as to the other. Louisville & N. R. Co. v. Frakes, 11 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1928).

The use of the word “negligence” in charging the jury on a violation of this section was not reversible error. Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.W.2d 26, 1933 Tenn. App. LEXIS 3 (1933).

Court in railroad accident case should not charge jury that if railroad exceeded speed limit of city ordinance and employees failed to observe this section that the railroad would be liable whether or not violation of the ordinance was the proximate cause of the accident, where court did not charge elsewhere that violation of the ordinance by itself must be proximate cause to hold railroad liable. Louisville & N. R. Co. v. Farmer, 220 F.2d 90, 1955 U.S. App. LEXIS 3307 (6th Cir. Tenn. 1955), rehearing denied, 224 F.2d 599, 1955 U.S. App. LEXIS 4126 (6th Cir. 1955), cert. denied, Farmer v. Louisville & N. R. Co., 361 U.S. 840, 80 S. Ct. 83, 4 L. Ed. 2d 79, 1959 U.S. LEXIS 531 (1959).

48. —Verdict.

Where one of two counts of declaration alleged statutory cause of action, and other count alleged cause of action under common law, and there was evidence to sustain only the statutory count, general verdict was applicable to such sustained count. Tennessee Cent. Ry. v. Umenstetter, 155 Tenn. 235, 291 S.W. 452, 1926 Tenn. LEXIS 41 (1926).

49. —Review.

Where the trial court ruled that the statutory precautions did not apply and withdrew that question from the jury, and submitted the case on the common law and the city speed ordinance, and the jury returned a verdict for the plaintiff, the court of civil appeals, on reaching the conclusion that the statutory precautions did apply, and consequently that plaintiff's contributory negligence was not a bar, could not determine the question withdrawn from the jury as to whether the statutory precautions had been complied with, especially as the evidence was conflicting, and affirm the judgment so far as it fixed defendant's liability and reverse it only for a new assessment of damages. It could only pass on the question of precautions in reviewing the overruling of a motion for peremptory instructions or the withdrawal of such question from the jury. The court of civil appeals did not affirm any part of the action of the trial judge or the judgment based on the verdict. Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917).

Where declaration in suit for damages arising out of railroad crossing accident alleged common-law negligence in count one, violation of this section for failure to keep crossing in repair in count four, and violation of this section in counts three and four for failure to sound whistle and to maintain a lookout, and trial court directed a verdict on the statutory counts, and there was a verdict by the jury in favor of the defendant on the common-law counts, both the first count and fourth count were passed upon by the jury and foreclosed consideration of the fourth count by the court on appeal. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

50. Precautions at Public Crossings (Subdivisions (1), (2)).

51. —Construction of Statutory Provisions.

This statute is in part repugnant to the common law, and it undertakes to prescribe and define the entire duty of railroad companies at public crossings, as to giving warning of the approach of trains, and must prevail over the common law, insofar as it is repugnant to the common law. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912); Southern R. Co. v. Noah, 180 Tenn. 532, 176 S.W.2d 826, 1944 Tenn. LEXIS 319 (1944).

The provision that no railroad engine driver shall be compelled to sound the whistle or bell at any public road crossing, where the proper signal has not been erected thereat by the overseer of the public road, was manifestly intended to relieve railroad companies from liability at such crossings not so designated. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912); Whittaker v. Louisville & N.R.R., 132 Tenn. 576, 179 S.W. 140, 1915 Tenn. LEXIS 48 (1915); Steele v. Louisville & N.R.R., 154 Tenn. 208, 285 S.W. 582, 1926 Tenn. LEXIS 116 (1926); Louisville & N. R. Co. v. Ross, 2 Tenn. App. 384, 1926 Tenn. App. LEXIS 35 (1926).

The general assembly has complete power, as a proper police regulation, to prescribe the manner of giving warnings at crossings. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

The provisions requiring signs and signals at crossings, while in derogation of the common law are also remedial in character, and are entitled to a construction which will not defeat the salutary purposes of their enactment. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919).

Where undisputed evidence showed that railroad crossing was not a designated crossing the statutory counts could not be maintained. Little v. Nashville, C. & S. L. R. Co., 39 Tenn. App. 130, 281 S.W.2d 284, 1954 Tenn. App. LEXIS 160 (Tenn. Ct. App. 1954).

52. —Situations Not Covered.

53. — —Parallel Roads.

The statutory precautions at crossings are inapplicable to a parallel and nearby road, not crossing the railroad, and these do not apply in favor of parties not injured in crossing or attempting to cross a railroad, but who are injured while traveling along a public road near to, and parallel with, a railroad. East Tenn., V. & G.R.R. v. Feathers, 78 Tenn. 103, 1882 Tenn. LEXIS 150 (1882).

54. — —Boarding Trains.

Under a Georgia statute requiring the blowing of a whistle when approaching a public road crossing an employee of the railroad could not recover damages for injuries in boarding a moving train which failed to blow whistle, since employee was not traveling on the public road. Gully v. Western & Atl. R.R., 1 Shan. 383 (1875).

55. — —Running Into Side of Train.

This statute does not apply to a case of an automobile running into the side of a train at a crossing, so as to enable the occupants thereof to recover for the railroad company's nonobservance of this statute. Southern R. Co. v. Simpson, 149 Tenn. 458, 261 S.W. 677, 1923 Tenn. LEXIS 106 (1924); McCampbell v. Central of G. R. Co., 194 Tenn. 594, 253 S.W.2d 763, 1952 Tenn. LEXIS 426 (1952).

56. —Effect of Statute in Shelby County.

Provisions of this section were impliedly repealed, insofar as applicable to crossings in Shelby County, by Private Acts 1911, ch. 237, taking from the county court and vesting in the board of county commissioners jurisdiction of roads of every class in Shelby County, and by Private Acts 1913, ch. 32, § 8, conferring on the board of county commissioners of the county full power to regulate railroad crossings, and to require railroad companies, at their own expense, to grade and provide safeguards and regulations as to such crossings. Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S.W. 437, 1918 Tenn. LEXIS 59 (1918).

57. —Common-Law Standards of Care.

Where a public road is crossed by a railroad on an overhead bridge, no absolute duty rests upon the railroad company, either at common law or by statute, to give, by the usual signals, to travelers on the highway, reasonable warning of the approach of a train; but, if the place is dangerous, the company must warn travelers on the highway of the approach of its trains; and whether the place, as a matter of fact, is dangerous, is a question for the determination of the jury; and in the event the jury should find that danger was to be reasonably apprehended at the conjunction of the underpass and overhead bridge, then, as a matter of law, it was the duty of the railroad company to give warning of the approach of its trains. Louisville & N.R.R. v. Sawyer, 114 Tenn. 84, 86 S.W. 386, 1904 Tenn. LEXIS 73, 108 Am. St. Rep. 881, 69 L.R.A. 662 (1904).

It is doubtless true that, under the common law, a duty rests upon every railroad company at a road crossing where the view is obstructed or where there is much travel, to give warning of the approach of its trains, and that this duty at common law rests upon such railroad companies, whether the crossing be marked in any way or not. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912).

Where the action for injuries on crossing is based on the common law, the proximate contributory negligence of the injured party bars a recovery. Middle T. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 1915 Tenn. LEXIS 174 (1916). See also Chattanooga Station Co. v. Harper, 138 Tenn. 562, 199 S.W. 394, 1917 Tenn. LEXIS 65 (1917); Klein v. Illinois C. R. Co., 4 Tenn. App. 563, — S.W. —, 1927 Tenn. App. LEXIS 208 (Tenn. Ct. App. 1927).

A railroad company may be liable for death in a crossing accident by reason of common law negligence, notwithstanding there is no statutory liability under the statute requiring signs, signals, and lookouts for the prevention of such accidents. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919).

The standard of care that a railroad company is required to use in operating its trains across public roads of the state outside of towns and cities is fixed by the common law of the state. Illinois Cent. R.R. v. Davis, 32 F.2d 232, 1929 U.S. App. LEXIS 3756 (6th Cir. 1929).

A railway company's negligence in creating extra hazard by stacking or permitting the stacking of lumber so near its track and the crossing as to obscure the view and to require an additional warning as a protection against the obstruction was a question for the jury. Cincinnati, N.O. & T.P. Ry. v. Garrett, 25 Tenn. App. 173, 154 S.W.2d 435, 1941 Tenn. App. LEXIS 91 (1941).

A railroad does not have a license to commit other acts of common-law negligence, thus where the railroad did commit other acts of common-law negligence, such as excessive speed, it was not relieved of the duty to sound a warning at a public crossing even though the crossing had not been so marked by the county officials. Cincinnati, N.O. & T.P. Ry. v. Garrett, 25 Tenn. App. 173, 154 S.W.2d 435, 1941 Tenn. App. LEXIS 91 (1941); Jones v. Louisville & N.R.R., 192 Tenn. 570, 241 S.W.2d 572, 1951 Tenn. LEXIS 304 (1951).

58. —Erection of Signs.

Under Tennessee law railroads are not required to erect warning signs at crossings, that being the function of overseers of public roads. Wallace v. Louisville & N.R.R., 332 F.2d 97, 1964 U.S. App. LEXIS 5308 (6th Cir. 1964).

59. — —“Overseer” Defined.

A turnpike company is not the “overseer” of a public road in the sense of this statute. Louisville & N. Tpk. Co. v. State, 50 Tenn. 129, 1871 Tenn. LEXIS 74 (1871).

A municipal corporation is not such “overseer.” State v. Manchester, 62 Tenn. 416, 1874 Tenn. LEXIS 70 (1874).

60. — —Sufficiency of Sign.

Designation of a crossing by a sign in plain view of passing trains was sufficient, although the sign was some 50 feet from the crossing, but in plain view, and was not lettered on the side towards the railroad, and some of the letters on the other side had become obliterated. Western & A. R. Co. v. Roberson, 61 F. 592, 1894 U.S. App. LEXIS 2210 (6th Cir. Tenn. 1894).

Where some person other than the overseer of a public road crossed by a railroad erected at such crossing a sign with cross arms on which were the words “Railroad Crossing,” such erection is not a sufficient compliance with this statute, so as to render a railroad company liable for failure to sound the whistle or bell. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912).

61. — —Failure to Erect Sign.

The failure of a turnpike company or municipal corporation to place the prescribed sign at the crossing is not a misdemeanor. Louisville & N. Tpk. Co. v. State, 50 Tenn. 129, 1871 Tenn. LEXIS 74 (1871); State v. Manchester, 62 Tenn. 416, 1874 Tenn. LEXIS 70 (1874).

The servants in charge of a train are not required to give any kind of warning of the approach of a train to a crossing not designated as required by the statutes. Southern Ry. v. Elder, 81 F. 791, 1897 U.S. App. LEXIS 1898 (6th Cir. 1897); Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4309 (6th Cir. Tenn. 1904).

There is neither a statutory nor a common-law liability against railroad companies for failure to observe the statutory precautions at public road crossings not designated as required by the statute. Graves v. Illinois Cent. R.R., 126 Tenn. 148, 148 S.W. 239, 1912 Tenn. LEXIS 51 (Tenn. Apr. 1912); Southern Ry. v. Campbell, 8 Tenn. Civ. App. 190 (1917).

A railroad company is not liable for a death in a crossing accident for its failure to blow its whistle at a distance of one fourth of a mile from the crossing, where such crossing had not been designated as a public road crossing by the required sign by the road overseers, as required by this section. Stem v. Nashville I. Ry., 142 Tenn. 494, 221 S.W. 192, 1919 Tenn. LEXIS 77 (1919).

Under the provisions of this section the absence of a crossing sign is a notice that extraordinary care should be exercised by a traveler desiring to cross. Southern R. Co. v. Noah, 180 Tenn. 532, 176 S.W.2d 826, 1944 Tenn. LEXIS 319 (1944).

Railroad was not required to sound whistle or bell at an “undesignated” crossing. Jones v. Louisville & N.R.R., 192 Tenn. 570, 241 S.W.2d 572, 1951 Tenn. LEXIS 304 (1951).

62. — —Sign Erected by Others Than Overseers.

Railroads are not required to sound the whistle or bell, at public road crossings, if the statutory signals have been erected by one not a public road overseer. Southern R. Co. v. Simpson, 131 F. 705, 1904 U.S. App. LEXIS 4