Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-03-05

/ B. o. Reese and others vs. the civil Distric
Board or Education, etc the Members OF tn
Board, and the Tax Collector OF Montgomer
County.-In Chancery.
At the instance Of the eomplsinsnts,
provisional injunction was granted il
this case by the Chancellor, restraining
the collection OF the tax set forth in tn
BILL Upon the coming in Of the answer
another Chancellor, at Chambers, on tn
application of the defendants, orderet
the injunction to be dissolved. And nov
the c0mplainsntsc come and ask the cour
in exercise of the power conferred by
section 1888 OF the Code, to supersede tht
Chsncellor's order for dissolution.
To understand the question which ha.
been discussed, and the action CT tht
Court in the premises, the facts material
to be stated are these
The Civil District Board of Education
Of the Twelfth Civil District Of Mont.
gcmery county, by virtue of, and in con.
| fOrmity with the l4ih section Of the SD
chapter Of the act of the General As
sembly Of Tennessee, enacted March IA
1858, assessed upon the taxable proper
ties within the civil district tex Of three
mills upon the dollar, and fifty cents on
each poll, for the purpose of raising ST.
500, to be applied to the building, etc OF
schoolhouses for the use Of the children
of the civil district.
The tax collector was proceeding to
enforce the collection Of the tsX; where
upon the cOmplSinsnts, who are tax pay
ers of the civil district, exhibited this
bill against the Board of f iucstiOn, and
the several members Of it, and the tax
collector of the county, and praying 8
provisional and perpetual Injunction.
The complainant alleges the fourteenth
section Of the act, and the tax assessed
pursuant TO it, to be unconstitutional and
void. And this is the question.
The l4.h section OF the act Of 1858 is as
follows:
Sec. Il. Be it further enacted. That
the cub district directors or the civil dis
trict directors acting as sub district direct
oTs, or on behalf of graded schools as
provided by law, are hereby authorized
and empowered as such TO assess such a
tax on PROPERTY and polls as shall be
necessary to pay teachers, or meet the
incidental expenses Of causing to be
taught, the necessary schools ss now re-
quired by law, five consecutive months
each year; and should any further tax
be then deemed necessary for the pur-
psse Of building, repairing or furnishing
school houses, they shall estimate such
dllOnlAf nOL " GACECu kAAGC Al3lAlb OLA q
dollar, or fifty cents on each poll, and
submit the question Of assessment to the
legal voters of the district, first having
posted notices Of the same in three of
the most public places in the district pre-
viOus to said election and il the maj Dr.
ity Of the legal voters OF the district,
present at said meeting, shall vote for the
assessment, it shall be assessed. In each
case the tax assessed shalI be entered on
3 tax duplicate by the County COur.
Clerk and collected by the tax collector
as provided by law in the cases OF other
local taxes, and shall be disbursed by the
County Superintendent on the proper Or
ders Of said board, as already provided
by law.
The courts owe great respect to the
legislative department of the govern
me1t, and ought not to declare void
statute which has received the sanction
OF the Legislature, unless il be clear that
the statute il in conflict with the consti-
tutional law. II such conflict clearly
appear, the duty to so declare 5snnot be
properly omitted.
The question proposed is not open in
Tennessee. It was closed by the judg-
ment of the Supreme Court in 1880, and
soon after again by the Convention of
1884, which framed the present Constitu-
ton.
The Constitution, by section 5 of srti-
Gle 2, ordains that 1.-THE Legislative an
thority OF the s ate shall be vested ina
General Assem- bly,, which shall consist
OF > Senate and House of OfRspresentstives
both dependent on the people"
In the case Of Mari vs.. EHlOe, decided
in 1880, and reported in Yerger's Re
ports, 452, the question came before the
Supreme Court, and it was there held
that the power Of taxation is in its ns-
ture legislative, and is incapable of dele
cation. SO essentially legislative is the
power held to be, that it can no more be
delegated than can be delegated the
power to enact statutory laws.
Upon the bench Of the Supreme Court,
when this decision was made, were Rob-
ert Whyte, CarOn and Green, The
mention Of their names carries with il
great authority. It may be said with
truth which Will receive the assent Of the
enlightened lawyers Of Tennessee, that
these men as much and probably more
than any other Of the Judges who have
the past history of the Court,
laid the foundation OF the Jurisprudence
of Tennessee, and gave to il the great
measure it has Of consistency, solidity
and truth.
-Four years after the decision of Marr
VS.. EnlOe, the Convention OF 1884 was
held. The decision was well known,
and that the rule declared by it was the
law OF the State.
The Convention had the power to SO
rOgste the rule totally, or to subject it to
partial notifications. 1t chCse the lat
ter, and authorized the Legislature to
delegate the power of taxation to the
counties and Incorporated towns. This
was done by the 29.h section Of the I'd
article of the Constitution. The Con-
ventiOn did not mean to go further. The
implication is irresistible that the ex-
preston OF the authority to delegate the
power to the counties and towns, is an
absolute exclusion Of the authority to
delegate the power to sny other agency.
1t is impossible to doubt that the Con-
ventiOn designated the counties and in
cOrporated towns, and authorizs I'D the
power to be conferred on them, for the
reason that without such designation the
power Of taxation would be restricted to
the Legislature only. The purpose Of the
10Th section was to authorize the Legis-
lature to confer the power OF taxation on
the counties and incorporated towns, and
no other or further.
The rule declared in Mari VS.. L aloe,
and the Interpretation herein given To
the 18th section, have had the universal
approval and sanction OF the courts, and
the profession, from the beginning to the
present time, with little exception and
that Of recent date. No principle of or
ganic law is more frmly imbedded in
the jurisprudence OF Tennessee, and in
the judicial and professional intelligence
Of the State, than the principle that the
Legislature cannot delegate the taxing
power, beyond the extent expressly desig-
mated by the Constitution. In accord
ance with il has been the uniform action
OF the Legislature heretofore. Until the
present instance there has not been, in
the legislative history OF the State, any
departure from IL known TO this Court.
It is conceded on all hands, that the
civil districts Of the counties are not, In
the sense of the Constitution, incorpors-
ted towns, and that the fact that they
are invested by the school law with some
Of the capacities Of corporate bodies does
not make them incorporated towns. By
no fair sense OF the words, nor by any
existing similitu6es, nor by any possible
construction Of the Constitution can the
cssvvssi. districts be held to be Incorporated
towns.
Were the question original and unset
tied, much weight would be due to the
persuasive and powerful arguments Of
the counsel for defendants, drawn from
E a "a