Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-02-28

counsel for defendants, drawn from 9
comparison of the constitutions of 179t
and 1884, and from the principle that the
legislative power IS universal and abso-
lutte, except when expressly or by cogent
implication limited by constitu~
tlonal restrictions; and from the
duty enjoined upon the Legislature by
the Constitution, to cherish and promote
literature, science and common education.
Much weight also would be owing TO
the adverse judicial opinions of the courts
OF some of the sister States of the Union.
But the decision of this court must be
governed by the..principles established by
the law Of Tennessee. Wisely or un~
wisely, and that is not for US to say. the
constitutional law Of Tennessee is, that
the taxing power is essentially legisla-
tive, and incapable of delegation to other
than the counties and incorporated towns.
And so we declare, and having no doubt
that it is so, we hold that the 18th Sec
ton Of chapter SO Of the act of March
Ii, 1868, and the tax assessed pursuant
to it, by the Board of Education of the
18th civil district Of Montgomery county,
are unauthorized by the constitution and
are void. The Chsnceller's order dis
solving the injunction will be superseded
and vacated, and the Clerk of this court
will so certify to the Chancery Court at
GAINESVILLE. HENRY G. SMITH.
| am unable to assent to the views
expressed by the majority of the court in
this case.
The case of MARI vs.. Enloe decides
that an act of the Legislature comforting
on the county courts unlimited power to
levy taxes to meet the current expenses
of the county is invalid, it being dele
cation of legislative authority. But it is
expressly held in that case that a statute
authorizing the county courts to levy q
tax of l21a cents per acre on lands for
contingent expenses Of the county is
not unconstitutional. The reasoning of
the court in that case is applied mainly
to the consideration Of public policy,
no authority is referred to in support Of
it, and think the decision, so far as it is
adverse to the constitutionality Of such
legislation, is opposed both to reason and
to authority.
The question has been often discuss ed
and long settled elsewhere, and l do not
propose to enter into the discussion at
length here. See Cooley const. I9I.
1t is possible that the doctrine that the
Legislature cannot confer the power Of
taxation upon counties or ether munici-
pal organizations, without express au~
thority to that effect in the constitution,
has been so long and so universally as
sented to and aequiesced in as the settled
law Of this State, that it is now too late
to question it, though it is a serious ques-
ton how far that consideration alone
should influence a court to set aside or
disregard clear and express enactment
Of the Legislature. But, however, that
may be, l am unwilling to hold that we
are authorized to declare the act
now in question, invalid upon the
mere authority of MARI vs.. Enloe
The argument, that as the convention
which framed the constitution Of 1884
expressly confers upon the Legislature
the right to authorize taxation by coun>
ties and incorporated towns without US
ing any more general terms, it must be
considered as prohibition against cOnfer~
ring such power to tax upon any other
municipal organization has in my opinion
little weight in view of the fact that at
the time of the formation of that consti~
tuition, no civil districts or local Boards of
Education existed in this State, and that
this power was by the constitution con-
ferred upon the only municipal organisa
ton then existing.
Gro ANnREwa Indpa