Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-02-28
SCHOUL TAXES.
The Right 90 Authorize Their COIIee
tim LndIcIaIlV Cnnaideral

The Right 90 Authorize Their COIlee
tiOn JudicIally Considered.
D o. Reese and others vs.. the Civil Distric
Board of Education, etc., the Members o
the Board, aud tho Tax Collector Of Mont
gomery County. I'm Chaneery.
At the instance of the compliments, Q
provisional injunction was granted in thi:
case by the Chancellor, restraining the
collection Of the tax set forth in the bill
Upon the coming in of the answer, an
other Chancellor, at Chambers, on the
application Of the defendants, ordered the
injunction to be dissolved. And now
the compliments come and ask this court
in exercise Of the power conferred by
section 1888 Of the Code, to supersede
the Chancellor's order for dissolution.
To understand the question which has
been discussed, and the action of the
court in the premises, the facts material
to be stated are these:
The Civil District Board of Education
of the twelfth civil district of Montgom>
cry county, by virtue Of, and in confor-
nifty with, the l4th section Of the 83d
chapter of the act of the General Assem-
bly, of Tennessee, enacted March ID
1865, assessed upon the taxable proper
ties within thecivii district q tax Of three
mills upon the dollar, and fifty cents on
each poll, for the purpose of raising 81,
500, to be applied to the building, etc.,
Of sehOOlh0uses, for the use Of the chill.
dren of the civil district.
The tax collector was proceeding to
enforce the collection of the tax; where
upon the compliments, who are tax>
payers of the civil district, exhibited this
bill against the Board Of Education, and
the several members OF it, and the tax
collector ofthe county, and praying pro>
Visional 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 l4th section Of the act Of 1868, is
as follows:
Sec. IA. Be it further enacted, That
the sub district directors or the civil dis
trict directors acting as sub district direc-
tors, 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 as now re-
CURED by law, five consecutive months
each year; and should any further
tax be then deemed necessary for the
purpose of building, repairing or
furnishing school houses, they shall
estimate such amount, not to exceed
three mills on dollar, or fifty cents on
each poll, and submit the question of as
sessment to the legal voters Of the dis
trict, first having posted notices Of the
same in three of the most public places
in the district previous to said election;
and if the majority of the legal voters of
the district, present at said meeting, shall
vote for the assessment, it shall be as
sessed. In each case the tax assessed
shall be entered on a tax duplicate by the
County Court 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 orders Of said board, IS
already provided by law.
The courts owe great respect to the
legislative department of the government,
and ought not to declare voil a statute
which has received the sanction Of the
Legislature, unless it be clear that the
statute is in conflict with the constitu
tional law. Ii such conflict clearly ap-
pear, the duty to so declare can not be
properly omitted.
The question proposed is not open in
Tennessee. It was closed by the judg-
nent Of the Supreme Court in 1880, and
soon after again by the Convention of
1884, which framed the present constitu-
tion.
The constitution, by Section 3 of Arti-
Gle 2 ,ordains that THE legislative author
ity of the State shall be vested in Gen"
eral Assembly, which shall consist of
a Senate and House of Representatives,
both dependant on the people"
In the case of Mari vs.iiEnloe, 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 nature
legislative, and is incapable of delegation.
So essentially legislative is the power
held to be, thai it can no more be dele
gated than can be delegated the power to
enact statutary laws.
Upon the bench Of the Supreme
Court, when this decision was made,
were Rob't Whyte. CatrOn and Green.
The mention OF their names carries with
it great authority. 1t may be said with
a truth which will receive the assent of
the enlightened lawyers of Tennessee,
that these men as much and probablymore
than any other of the judges who have
adorned the past history of the court, laid
the foundation Of the Jurisprudence OF
Tennessee, and gave to it the great
measure it has, of consistency, solidity
and truth.
Four years after the decision Of Mari
vs.. Enloe, the Convention of 1884 was
held. The decision was we'll known,
and that the rule declared by it, was the
constitutional law of the State.
The Convention had the power to alb O.
gate the rule totally, or to subject it to
partial notifications. 1t chose the latter,
and authorized the Legislature to dele
gate the power Of taxation, to the "cOun>
ties and incorporated towns" This was
done by the Doth section Of the second
article of the constitution. The Conyen-
ton did not mean to go farther. The
implication is irresistible, that the
expression of the authority to delegate
the power TO the counties and towns, is
an absolute exclusion of the authority to
delegate the power to any other agency.
1t is impossible to doubt that the Con-
vention designated the counties and in
corporated towns, and authorized 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 29th section was to authorize the
Legislature to confer the power of taxa
ton on the counties and incorporated
towns, and no other or further.
The rule declared in Mari as. Enloe,
and the Interpretation herein given to
the Doth 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 ofrecent date. No principle of or
ganic law is more firmly 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 de-
signated by the constitution. In accord
ance with it 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 it, known to this court.