any two corporations. They must both be nifies or includes "lands, tenements and herconstrued with this in view. If the con- editaments, and all rights thereto and interstruction insisted, upon were the correct one, ests therein." These terms expressly include a mining corporation which owns mining every species of realty which a railroad comproperty of great value, but which has a pany may own. capital stock of nominal value, could be consolidated with another mining corporation by the payment of the consolidation tax only, notwithstanding that its chief asset is real estate. Section 2330, Thompson-Shannon's Code. The same would be true of real estate companies which may be chartered under the laws of this state and whose assets are chiefly realty. Thompson-Shannon's Code, § 2438. We have thus seen that the privileges provided for in sections 8 and 10 are not the same. The fact that there may be an indirect duplication is not an objection. Street Railway Co. v. Morrow, 3 Pickle (87 Tenn.) 406, 11 S. W. 348; 1 Cooley on Taxation, p. 387; Judson on Taxation, § 426. The similarity of taxation is incidental merely. The purposes sought by the Legislature are different, and intended to meet different transactions. Knoxville v. Sanford, 13 Lea, 545; Cigar Co. v. Cooper, 15 Pickle (99 Tenn.) 472, 42 S W. 687. [6] It is next insisted that it was not intended by the Legislature that section 8 should apply to the transfer and sale of the entire properties of a railroad company, but that it was intended to and did apply only to the transfer of land or interest in land in the ordinary acceptation of the term. This contention is based upon the idea that a railroad is a highway, and as such is an entire ty, and all of the properties which it owns are incidental merely to its functions as a highway. This is true as a general proposition, but it cannot be denied that the Legislature has the power to tax the transfer of its real estate separate from its use in the discharge of its functions as a highway, that the Legislature has levied a tax upon "all transfers of realty," and that the language employed would include transfers of realty belonging to a railroad company would seem to be too clear to admit of argument. There is nothing left for us to do but to give effect to the words employed by the Legislature. It is next insisted that the Legislature did not intend or undertake to consider property as one class for the levying of ad valorem taxes and another class of property for levying privilege taxes. But, as stated above, the Legislature beyond doubt has power to so consider it, and we think clearly that it has done so. The fact that the Legislature had divided the property of railroads into localized and distributable properties for the purpose of levying ad valorem taxes would not militate in any degree against its intention to levy a tax upon "all transfers of realty." The word "realty" means land as employed in the laws of this state, and the Code enacts, at section 51, that the word "land" sig [7, 8] The bill has not alleged in round terms what the value of the property transferred by the deed of the Lewisburg & Northern to the Louisville & Nashville is. It does state that a mortgage of about $15,000,000 has been placed upon the property and that it is worth a great deal more than that sum. A point is made in the demurrer that the bill does not allege the value of the property. We do not think the point is well taken, as its true value may be ascertained by proof. The value stated in the deed is only prima facie evidence of the true value, and, of course, any value stated in the bill is subject to be controverted by the proof. Hitt v. Coal Co., 124 Tenn. 334, 139 S. W. 693. [9] We should add that only one tax will be collected. The clerk of the county court of the county in which the deed is first of fered for registration will collect the transfer tax on the true value of the realty conveyed and so certify upon the deed. This payment of one tax in one county is all that the defendant is liable for, and the certificate attached to the deed by the county court clerk will authorize the registration of the deed in every county in the state in which it is desired to register it. This is a state tax and the counties are not concerned with it. One payment will satisfy the demands of the state, and that payment should be made to the clerk of the county court of the county in which the deed is first registered. STATE v. BOCKMAN. (Supreme Court of Tennessee. Feb. 9, 1918.) 1. INFANTS 18 JUVENILE DELINQUENTS— APPEAL FROM JUDGMENT-JURISDICTION OF SUPREME COURT-STATUTE. Under Acts 1911, c. 58, providing for juvenile courts, and outlining their jurisdiction, containing no provision for appeal from the judgments of the juvenile courts created, the Supreme Court is without jurisdiction of an appeal in the nature of a writ of error prosecuted by one adjudged by the juvenile court of 2. APPEAL AND ERROR 1-CONSTITUTIONa county to be a delinquent child. AL OR STATUTORY ORIGIN OF REMEDY BY APPEAL. The remedy by appeal, unknown to the common law, is wholly of constitutional or statutory origin, and if no right of appeal is given by statute, by express words or necessary implication, no appeal will lie. 3. APPEAL AND ERROR 7-CERTIORARI 5(1)-CIRCUIT COURTS-SUPERVISORY JURISDICTION OVER INFERIOR TRIBUNALS INCLUDING JUVENILE COURT. The general appellate and revisory jurisdiction of the circuit court over all inferior tribunals created by the Legislature and vested with judicial powers, as the juvenile court of a county, may be invoked by certiorari and supersedeas where no appeal or writ of error lies for the correction of the judgments of such inferior tribunals, and such jurisdiction may be exercised, not only when the inferior tribunals have exceeded their powers or are acting irregularly, but for errors of law and fact. 4. COURTS 246 JURISDICTION OF SUPREME COURT AND COURT OF CIVIL APPEALS-SU PERVISION OF ACTION OF JUVENILE COURTS -STATUTES-"COURT OF LAW"-"COURT OF EQUITY" -"COMMON-LAW COURT"-"CIBCUIT COURT." Under Thompson's Shannon's Code, § 6321a, vesting only appellate jurisdiction in the Court of Civil Appeals, extending to all cases brought up from courts of equity or chancery courts, with certain exceptions, and to all civil cases tried in the circuit and common-law courts of the state, and section 6329, providing that the Supreme Court has no original jurisdiction, but appeals and writs of error or other proceedings for the correction of errors lie from the inferior courts of law and equity within each division to the Supreme Court held for that division, neither the Supreme Court nor the Court of Civil Appeals can have immediate supervision of the action of a juvenile court, which is not a "court of law," a "court of equity," a "common-law court,' or a "circuit court." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Court of Law: Court of Equity; Circuit Court; First Series, Common-Law Court.] 5. COURTS 246 JUDGMENT OF JUVENILE DELINQUENCY REVIEW BY CERTIORARI JURISDICTION OF CIRCUIT COURT-STATUTE. - Under Thompson's Shannon's Code, §§ 6063, 6072, providing that jurisdiction of all matters not otherwise provided for is intrusted to the circuit court, one adjudged to be a juvenile delinquent by the juvenile court of a county may obtain review of his case by certiorari in the circuit court of that county. Appeal from Circuit Court, Putnam County; J. M. Gardenhire, Judge. Proceedings by the State of Tennessee against Verbal Bockman to adjudge him to be a delinquent child. From judgment to that effect, he prosecutes appeal in the nature of writ of error directly to the Supreme Court. Dismissed. E. D. White, of Livingston, for Bockman. Wm. H. Swiggart, Jr., Asst. Atty. Gen., for the State. GREEN, J. This is an appeal in the nature of a writ of error from proceedings had in the juvenile court of Overton county, wherein Verbal Bockman was adjudged to be a delinquent child. He made a motion for a new trial and the same being overruled, he prosecuted an appeal in the nature of a writ of error directly to this court. The proceedings against Bockman were had under chapter 58 of the Acts of 1911, providing for juvenile courts and outlining their jurisdiction, etc. This act has heretofore been held constitutional in Childress v. State, 133 Tenn. 121, 179 S. W. 643. This being so, nile courts thereby created. we are without jurisdiction of the controversy in its present status. [2] The remedy by appeal was unknown to the common law and is altogether of constitutional or statutory origin. If no right of appeal is given by statute in express words or by necessary implication, no appeal will lie. Wade v. Murry, 34 Tenn. (2 Sneed) 50; Ex parte Knight, 71 Tenn. (3 Lea) 401; Tomlinson v. Board of Equalization, 88 Tenn. 1, 12 S. W. 414, 6 L. R. A. 207; Chattanooga v. Keith, 115 Tenn. 588, 94 S. W. 62, 5 Ann. Cas. 859. The authority of these cases, in so far as they relate to proceedings by appeal, writ of error, or appeal in the nature of writ of error, is in no wise weakened by Staples v. Brown, 113 Tenn. 641, 85 S. W. 254. [3] Staples v. Brown reviews all of the earlier cases and holds that the circuit court has a general appellate and revisory jurisdiction over all inferior tribunals created by the Legislature and vested with judicial powers. This jurisdiction of the circuit court may be invoked by certiorari and supersedeas where no appeal or writ of error lies for the correction of the judgments of such inferior tribunals. Such jurisdiction may be exercised not only when the inferior tribunals have exceeded their powers or are acting irregularly, but for errors of fact and law committed by them, to the end that the case may be tried again upon its merits. It has been urged that the juvenile court is not a tribunal inferior to the circuit court and that the proceedings of the juvenile court must be reviewed in this court or in the Court of Civil Appeals on certiorari. A brief has been filed with the court in which the importance of the juvenile court is stressed, and it is contended that its work should be supervised only by the appellate courts of the state. Without in any way disparaging the work of the juvenile court or detracting from its dignity, we are forced to the conclusion that in the sense of our statutes it is a court or tribunal inferior to the circuit court. The jurisdiction of the juvenile court is limited, while on the contrary the jurisdiction of the circuit court is general, and wider than that of any other court known to our judicial system. The circuit court has been held a superior court to various tribunals of the highest dignity and importance and the action of such tribunals has been held to be reviewable on certiorari by the circuit court. In Durham v. United States, 4 Hayw. 54, the proceedings of a court-martial were reviewed in the circuit court. [1] A re-examination of the statute dis- In Bob v. State, 10 Tenn. (2 Yerg.) 173, closes that no provision is therein made for the proceedings of a special court, composed an appeal from the judgments of the juve-of three justices and a jury, created for the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes purpose of trying slaves charged with crime, tion on the part of this court in Childress v. was reviewed in the circuit court. In Hawkins v. Kercheval, 78 Tenn. (10 Lea) 540, action of the police commissioners of Nashville was reviewed in the circuit court. In Hayden v. Memphis, 100 Tenn. 583, 47 S. W. 182, the circuit court reviewed proceedings of the city council of Memphis. Illustrations might be multiplied. In fact, it is a matter of frequent occurrence for the circuit court to review by certiorari the proceedings of all commissions and tribunals created by the state exercising judicial functions, regardless of the gravity and importance of the matters intrusted to the jurisdiction of such commissions or tribunals. See instances mentioned in Staples v. Brown, supra. [4] Neither this court nor the Court of Civil Appeals can have immediate supervision of the action of the juvenile courts. The statute defining the jurisdiction of this court is as follows: "The court has no original jurisdiction; but appeals and writs of error or other proceedings for the correction of errors lie from the inferior courts of law and equity within each division to the Supreme Court held for that division." Thompson's Shannon's Code, § 6329. State, and so undertook to bring the case here. Having been so misled, the circuit judge will no doubt excuse the delay thereby occasioned in presenting a petition for certiorari in Bockman's Case. Under Thompson's Shannon's Code, § 5503, giving authority to any judge of the circuit, common-law, or criminal courts, or to any chancellor to issue a writ of habeas corpus, Acts 1911, c. 58, entered a judgment awarding where the juvenile court, in a proceeding under custody of a child, the questions determined in such proceeding cannot be again litigated in a habeas corpus proceeding, by the same parties, on the same state of facts. 2. HABEAS CORPUS 4-PURPOSE OF WRIT. The writ of habeas corpus cannot be made to serve the purpose of an appeal or writ of er ror. 3. CERTIORARI 14-REVIEW OF PROCEEDINGS IN JUVENILE COURT. Proceedings in the juvenile court must be reviewed in the circuit court by certiorari. Certiorari to Court of Civil Appeals. Habeas corpus proceeding by the State, on relation of Chester R. Jones, Sr., and anoth The juvenile court is not a court of law nor a court of equity, and it is from such courts alone that proceedings for the correc-er, against Mrs. B. G. West, Superintendent tion of errors can be taken directly to the Supreme Court in the absence of special statutory authority. The jurisdiction of the Court of Civil Appeals is appellate only and extends to all cases brought up from "courts of equity or chancery courts," with certain exceptions, "and to all civil cases tried in the circuit and common-law courts of the state." Thompson's Shannon's Code, § 6321a. The juvenile court is manifestly not a court of equity or chancery court, nor is it a circuit or common-law court, and it accordingly follows that the Court of Civil Appeals can have no immediate supervision of its proceedings. [5] The Code provides that jurisdiction of all matters not otherwise provided for is intrusted to the circuit court. Thompson's Shannon's Code, §§ 6063, 6072. Such being the law, this appeal in error must be dismissed. Bockman may obtain a review of his case by certiorari in the circuit court of Overton county. The report of the case of Childress v. State, supra, does not indicate whether or not it came directly to this court. If it was a direct appeal in error, we inadvertently took jurisdiction-the question of jurisdiction not being raised. of the Juvenile Court, and another. The Court of Civil Appeals reversed a judgment of the circuit judge, dismissing the petition, and defendants bring certiorari. Judgment of Court of Civil Appeals reversed, and judg ment of circuit court affirmed. L. H. Graves, of Memphis, for plaintiffs. Julian G. Strauss, of New York City, for defendants. GREEN, J. This is a habeas corpus proceeding, brought by Chester R. Jones against the officers of the juvenile court in Memphis to obtain the custody of his minor child, Chester R. Jones, Jr. Two or three days before this petition was filed, certain proceedings were had in the juvenile court in Memphis to which Chester R. Jones was a party, and it was there adjudged that the best interests of the child required that its custody be intrusted to a woman in Memphis, formerly a nurse. An order to this effect was accordingly entered, and in other proceedings had in the juvenile court the father, Chester R. Jones, was directed to contribute a certain weekly sum toward the care and maintenance of the child. The pleadings in the habeas corpus case are not sent up with the transcript, but no point is made on that by either party. The Counsel for Bockman was doubtless mis- only question discussed is the power of the led by the apparent assumption of jurisdic-criminal or law courts in Tennessee to try over the question of the custody of a minor | these high capacities, summary order that the child and determine what the child's best interests require, regardless of the action of the juvenile court in the premises, and in a different suit. It is not denied that the proceedings with reference to this child were regular, and that the juvenile court had jurisdiction of the subject-matter under the act of 1911, nor is it insisted that the facts developed on the hearing of the petition for habeas corpus were at all different from the facts presented to the juvenile court. As noted above, only two or three days intervened between the two hearings. Although the circuit judge allowed the parties to go into full proof tending to show what the best interests of the child required, he finally concluded that the writ of habeas corpus did not lie in such a case under such circumstances, and dismissed the petition. On appeal by the relator, this judgment was reversed by the Court of Civil Appeals, and the child was awarded to his grandfather, the father of the relator Chester R. Jones. The authorities of the juvenile court have filed a petition for certiorari, which has been granted by this court, and the case heard here. We are of opinion that the circuit judge properly dismissed the petition for habeas corpus and discharged the writ. The disposition of the case submitted necessarily involves a consideration of the function of the writ of habeas corpus as employed affecting the custody of minor children. Such use of the writ has been recognized in Tennessee from an early date, and there is a full discussion of the subject in State ex rel. v. Paine, 23 Tenn. (4 Humph.) 523. party be forthwith set at liberty, if improperly "The cases before cited show that the Eng- In re monarchy to a republic, the functions of parUnder the change of government from a ens patriæ did not cease to exist. Such authority passed from the king to the government of the state or sovereign people, and it ture, the representatives of the people, and may be called into exercise by the Legisladelegated by the Legislature to other functionaries. Ewell v. Sneed, 136 Tenn. 602, 624, 191 S. W. 131; Mormon Church Case, 136 U. S. 1, 58, 10 Sup. Ct. 792, 34 L. Ed. 481, 496. In Ewell v. Sneed, supra, following our earlier cases, we pointed out that at the time of the decision no officer in Tennessee had been intrusted with authority and duties of parens patriæ respecting charities. This is what the charity cases mean when they say we have no parens patriæ. The writ of habeas corpus, however, was preserved as a part of our system of government by the federal Constitution (article 1, § 9), and by each Constitution of the state (1870, art. 1, § 15; 1834, art. 1, § 15; 1796, art. 11, § 15). statute to any judge of the circuit, commonAuthority to issue this writ is intrusted by law, or criminal courts, or to any chancellor in cases of equitable cognizance. Thompson's Shannon's Code, § 5503. In the United States Circuit Court for the Southern District of New York, Judge Betts delivered an opinion in the case of In re Barry (C. C.) 42 Fed. 113. This opinion is a classic in the law, and was ordered by the Supreme Court to be printed as an appendix to its own opinion in Re Burrus, 136 U. S. 586, 10 Sup. Ct. 850, 34 L. Ed. 500, and was again commended and referred to writ of habeas corpus rests on the assumpAs it affects the custody of infants, the in New York Foundling Hospital v. Gatti, tion of a right in the state, paramount to 203 U. S. 429, 27 Sup. Ct. 53, 51 L. Ed. 254. any parental or other claim, to dispose of The learned judge in this discussion show- such children as their best interests require. ed that habeas corpus was purely a preroga- The legal rights of a parent are very gravely tive writ. It issued to bring the parties im- considered, but are not enforced to the disadprisoned before the king in person, or some vantage of the child. Such is the universal magistrate or other representative of the su- practice, and it has been followed in this preme authority. If there appeared to be jurisdiction from State ex rel. v. Paine, suno due cause for the detention of the peti-pra, to State ex rel. v. Kilvington, 100 Tenn. tioner, the sovereign set him free-citing 3 Blackstone, Com. 131; Bacon's Abr. (Habeas Corpus) 421; 3 Story's Constitutional Law, 207; 2 Kent's Com. 26, 29; Ex parte Watkins, 3 Pet. 193, 202, 7 L. Ed. 650. 227, 45 S. W. 433, 41 L. R. A. 284. There is no reason to doubt that this sovereign power of the state to foster the welfare of the child may be exercised through other instrumentalities than the writ of habeas corpus, and may be enforced by agencies other than courts of law and equity. "In respect to married women or other adults, held in detention by private individuals, the sovereign. through this writ, acts as conservator pacis and custos morum, and in regard to In solicitude of this class of the populainfant children, as parens patriæ, making, in tion of the state, the Legislature has created the juvenile courts by chapter 58 of the Acts (tody of children determined by the juvenile of 1911, the validity of which enactment we court, in any case. If some time has elapsed upheld in Childress v. State, 133 Tenn. 121, since the order of the juvenile court in such 179 S. W. 643. These courts were establish- a matter, or if the condition of the parents ed for the protection of our children, and are or former custodian of the child has changexpressly authorized to remove delinquented, so as to make it desirable that the child or dependent children from unfavorable surroundings and adjudicate their proper custody, and separate them from their parents when such action appears to be for the best interests of the child. The jurisdiction conferred on these tribunals in such matters is ample. [1] Now, as we have said, the real office of the writ of habeas corpus in cases involving the custody of children is to develop before the court what the true interests of the detained child require, and an order is made accordingly. This is the exact question which is presented to the juvenile court in all these cases intrusted to its jurisdiction. An adjudication in one habeas corpus proceeding to determine the custody of a child is almost uniformly held to be conclusive on the parties, or res adjudicata in a similar proceeding on the same state of facts. Cyc. 351; 12 R. C. L. p. 1255. 21 We think that an adjudication of such a matter in the juvenile court is likewise conclusive on the parties on the same state of facts. It is of course elementary that a judgment or decree in one suit is a bar to another suit between the same parties for the same object and purpose; the same point being directly in issue. Our cases to this effect will be found collected in 6 Enc. Dig. of Tenn. Rep. p. 193. As a matter of fact, a judgment of a court of competent jurisdiction, upon a point or question directly involved, is conclusive in a second suit between the same parties, although the subject-matter of the second action be different. Gudger v. Barnes, 51 Tenn. (4 Heisk.) 571; State v. Bank, 95 Tenn. 212, 31 S. W. 989. It is said that the best test as to whether a former judgment is a bar in subsequent proceedings is to consider whether the same evidence would sustain both. If so, then the judgment in the former suit is res adjudicata, although the two actions are different. 15 R. C. L. p. 964. Tested by this rule, the judgment in the juvenile court was clearly a bar to this proceeding in habeas corpus. It makes no difference that the form of action was different. "On the question of res judicata, it is immaterial that the questions alleged to have been settled by a former adjudication were determined in a different kind of proceedings or a different form of action from that in which the estoppel is set up, the parties and the issues being the same.' 23 Cyc. 1221. We do not mean to say that a writ of habeas corpus will not lie, as affecting the cus be returned to them, such matters can be properly set up, and the child recovered by habeas corpus procedure. To this effect, see Farnham v. Pierce, 141 Mass. 203, 6 N. E. 830, 55 Am. Rep. 452; Kennedy v. Meara, 127 Ga. 68, 56 S. E. 243, 9 Ann. Cas. 396. This is what this court held in State v. Kilvington, supra. We are of opinion, however, that such a question, determined by the juvenile court, cannot be again litigated in a habeas corpus proceeding, in the courts of law and criminal courts, between the same parties, and on the same state of facts. The jurisdiction of the juvenile court, as stated before, is adequate, and its valid judgments are entitled to full consideration. [2, 3] The writ of habeas corpus cannot be made to serve the purpose of an appeal or writ of error. State ex rel. v. Taxing District, 16 Lea (84 Tenn.) 240. Proceedings in the juvenile court must be reviewed in the circuit court by certiorari, as pointed out in State v. Bockman, 201 S. W. 741, just decided. It results that the judgment of the Court of Civil Appeals will be reversed, and the judgment of the circuit court affirmed, and this petition will be dismissed, and the writ of habeas corpus discharged. A letter from a corporation to another, stating, "You may enter our contract for a minimum quantity of one hundred twenty tons, maximum quantity of one hundred forty-five tons" of paper specifying the prices and terms signed by the corporation and accepted by the other, is not void for uncertainty or lack of mutuality. 2. SALES 60 CONTRACTS-CONSTRUCTION. In construing a contract the previous dealings of the parties and the circumstances in which the contract was made and the situation of the parties may be considered. 3. SALES 71(5) — CONTRACTS - CONSTRUCTION-RIGHTS OF PARTIES. Under contract for paper specifying a minimum and a maximum quantity if the option was with the seller, it was bound to deliver the minimum, and might deliver any additional quantity up to the maximum; but if it lay with the purchaser, the purchaser was bound to accept the minimum, and could require the maximum. 4. SALES 71(5) CONTRACTS - CONSTRUCTION-RIGHTS OF PARTIES. Where a publishing company authorized a paper company to enter its order for a minimum of 120 tons of paper and maximum of 145 tons, the offer being the purchaser's, the purchaser |
