Wray v. Railroad.

illustrating truthfully their location, topography, and situation, should not be shown to the jury, to be by them considered with all the other testimony in the case, but not to the exclusion of other testimony; and certainly the jury would not be permitted to form its judgment by merely looking at photographs of the premises alone.

We are of opinion that the proper plan for arriving at the damages to the remainder of the lots not taken for a right of way is to estimate the special benefits and special damages to them, leaving out of view the general benefits and damages resulting from a construction of the road.

If these special damages to each particular lot exceed the special benefits, the landowner is entitled to such excess, in addition to the value of the right of way taken.

The court allowed a paper purporting to be an assessment blank for purposes of taxation to be introduced over objection. It was proven by Mr. Smith, deputy tax assessor, that this schedule was a paper in his office; that it was handed to him by Dr. Wray, the husband of the complainant Mrs. Wray; and that it had upon it a valuation of a number of lots, embracing this one at $2,300, and purported to be signed by Mrs. Wray. Mr. Smith, the custodian, could not prove the signatures of Mrs. Wray, nor was it proven by any one else.

We think the admission as evidence of this schedule was error. The signature is not proven.

value of this particular lot is not shown.

The separate

The law does

Wray v. Railroad.

not require an owner to value his real estate, but merely to describe it for the purposes of assessment for taxation. The valuation, if made of the lot by the petitioner, Mrs. Wray, was for a wholly different purpose from the present one. This court knows judicially and as a part of the financial history of the State that land is never assessed for purposes of taxation at its real cash market value, though that may be the law, but only in comparison with other lands around it, and, if petitioner valued it, we would presume she placed such comparative value, instead of the real market value, upon it.

It is said in Lewis on Eminent Domain, section 448, that the assessment of property for taxation being made for other purposes, and not at the instance of either party, and not usually at the market value of the property, is not admissible as evidence of value in condemnation proceedings. See cases cited.

We think that admission of the schedule was im

proper.

For the errors indicated, the judgment of the court below is reversed, and cause remanded, and the railroad will pay the costs of appeal.

State, ex rel., v. Trewhitt.

STATE, ex rel. W. H. CUMMINGS, v. A. H. TREWHITT. (Knoxville. September Term, 1904.)

1. COUNTY ATTORNEYS, Office created by legislature and may be abolished, or the term shortened or lenghtened by it. The office of the county attorney is not provided for in the constitution; and when created by the legislature, it may be abolished or the term may be lengthened or shortened by the legislature. (Post, p. 566:)

2. SAME. Term of office of incumbent cannot be extended by legislature.

The provision of amendatory statute extending the term of the incumbent in the office of county attorney is in conflict with the constitution, and, therefore, void. (Post, pp. 566-568.)

Acts cited and construed; 1899, ch. 352; 1903, ch. 576.

Constitution cited and construed: Art. 11, sec. 17.

3. SAME. Same. Legislature cannot extend term of incumbent by implication or inference.

The extension of the term of office of an incumbent in the office of county attorney cannot be sustained under the constitutional provision concerning the holding over of incumbents. pp. 568-571.)

Acts cited and construed: 1899, ch. 352; 1903, ch. 576.

(Post,

Constitution cited and construed: Art. 7, sec. 5; art. 11, sec. 17. Cases cited and approved: Kimberlain v. State, ex rel. (Ind.), 29

N. E., 773, 14 L. R. A., 858, 860, 30 Am. St. Rep., 208; State v. Arrington, 18 Nev., 412; People, ex rel. Williams, v. McKinney, 113 Tenn-36

4

State, ex rel., v. Trewhitt.

52 N. Y., 374; People, ex rel. Lovett, v. Randall, 151, N. Y., 497; People v. Bull, 46 N. Y., 57; People v. Foley, 148 N. Y., 677; People, ex rel. Eldred, v. Palmer, 154 N. Y., 133, 138, 139; State, ex rel. Meredith, v. Tallman, 24 Wash., 426, 429, 430.

STATUTES. One subject to be expressed in title; additional severable subject in body eliminated preserving the rest of the act, when.

Where a statute contains two severable subjects, only one of which is included in the title, and this one expresses the chief purpose of the legislature, and the other one not expressed in the title is merely incidental and subordinate, and can be stricken out without in any sense impairing the efficiency of the act, this will be done, and the other portion of the act preserved. (Post, pp. 571,572.)

Act cited and construed: 1903, ch. 576.

Constitution construed, but not cited: Art. 2, sec. 17.

Case cited and approved: Jones v. Memphis, 101 Tenn., 188.

5. SAME. Time to take effect may be fixed by legislature. The legislature may postpone the time when an act shall take effect beyond the constitutional time of forty days. (Post, pp. 572,573.)

Act cited and construed: 1903, ch. 576.

Constitution cited and construed: Art. 2, sec. 20.

Cases cited and approved: Logan v. State, 3 Heis., 442, 445; Sam

mis v. Bennett (Fla.), 14 South., 90, 22 L. R. A., 48.

FROM HAMILTON.

Appeal from the Chancery Court of Hamilton County.

-T. M. MCCONNELL, Chancellor.

State, ex rel., v. Trewhitt.

STATEMENT BY MR. JUSTICE NEIL.

On the 21st day of April, 1899, the following statute was enacted by the legislature of this State:

"An act to create the office of county attorney of Hamilton county, and to prescribe the duties thereof. "Section 1. Be it enacted by the general assembly of the State of Tennessee, that there is hereby created the office of county attorney of Hamilton county. Said officer shall be elected by the quarterly county court of Hamilton county at its January term for a period of one year, and annually ever thereafter. His salary shall be $1,000, and shall not be increased or diminished during his term of office.

"Sec. 2. Be it further enacted, that it shall be the duty of said county attorney to transact all the legal business of said county, either in court or otherwise, and to advise the county officials upon legal matters affecting their offices, and no officer of said county shall employ any other attorney save at his own personal expense unless he shall be first authorized and empowered by the quarterly court.

"Sec. 3. Be it further enacted, that this act take effect from and after its passage, the public welfare requiring it.

"Passed April 20, 1899.

"Approved April 21, 1899." Acts 1899, p. 823, c. 352. On the 1st day of January, 1903, W. H. Cummings was elected county attorney of Hamilton county, by the county court of that county for one year.

On the 9th of April, 1903, the following act was passed by the legislature, for the purpose of amending the foregoing statute: