Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1876-12-13
THE MERCHANTS TAX.
The Question Of Jurisdiction Decided by
Judge Hsiskell, on EmmOns's Opinion,
Sustained by the Supreme
Court.
The Merchants will be Compelled to Pay
unless they Stay by an Appeal to the
United States Supreme Court.

Yesterday Colonel VIM. NJ Randolph, at
torney for I. E. Brown, received a telegram
from Mr., E. S. Hammond, at jackson, stating
that the supreme court had decided the mer-
chants tax case in his favor The telegram
says nothing about the questions decided by
the supreme court, more than that the iudg-
ment Is IN favor Of I. E. Brown, and against
the merchants who were the cOmplainants in
error. The announcement of o. decision in
this case Is Of such Importance as to demand
a retrospective glance at the cause. origin and
nature OF the lawsuits which, for several years,
have engaged the services of the ablest
members Of our bar, and claimed the
consideration Of the Judges of the State and
Federal courts. On November "a. 1868 the
mayor and aldermen of this city, agreeable
TO the authority of an act of the Tennessee
Legislature passed in 1866, made various con-
tracts with L. b. Brown for paving Main,
Madison, Second, Union, DeSoto, Adams,
Poplar and Shelby streets. The general ma
ture OF these contracts embodied provisions
that this work should be paid for by the
owners OF property which abutted upon the
pavementS. The improvements to be made
under the specifications and approval of
the city engineer, guarantee
as to payment of the contractors being
either expressed or implied. Mr.. Brown. the
the contractor as is well known, laid the
Nlcolson pavement upon the above thorough
fares and proceeded TO demand and collect
the different and respective amounts due him
by the owners Of property abutting thereon.
some OF these property owners, however, re-
fllsed pay the contractor, and suit was IN
Sttuted. 1.-The court below decided that the
law was unconstitutional and void, and hence
the owners OF the property abutting upon the
onto ,DtH L. IL 1
the pavements. Thereupon an appeal was
had to the supreme court of Tennesspe
but this tribunal affirmed the decision of the
lower court, the effect being that the Sums
paid by the owners of such property was ille-
gally demanded, etc. It's well known that this
ultimate decision was recognized by the city.
and certificates issued to reimburse those who
had paid such sums. After this decision was
announced, the contractors claimed that the
city OF Memphis was hable for the payment
tor the pavement, maSmuch as the contract
mad been made with, and was guaranteed by
the city of Memphis, conseouentIy
suit was instituted in the United States
circuit court for the western district of
Tennessee, and after hearing the argument
on the case Judge Emmons decided in favor
OF the contractors, and held that the CITY of
Memphis was liable for the payn 9nt. There
upon Mr.. I. E. Brown applied for and was
granted mandamuS to compel the CITY of
Memphis to order the levy of a tax sufficient
to pay hls Judgment, amounting to several
hundred thousand dollars. The city council
pursuant to the mandamus passed an ordi-
nance levylng Sad tax, under which they in
Guided the tax ON merchants capital.
The merchants united and determined to re-
slSt the payment OF this tax upon their capi-
I11rY, III, II
illegal and unconstitutional They raised the
question as to whether the city could tax the
merchants capital as they not only had
already paid their customary license for the
privilege Of doing business, but also paid this
direct tax upon their personally and realty
outside Of the tax on their capital Owing
to the urgent nature of the case,
which was filed in the United States court,
the attorneys for complainants and respond
ents proceeded to Nashville, and there argued
the cause before Judge Emmons, of the
United States court. Judge EmmOns de-
clded that the city could tax the merchants
capital, IN addition to taxing their personally
and realty. Not satisfied with this decision.
but anxious to test the question in the
State courts, other merchants fled Il bill
IN the first circuit court Of this county.
Judge Heiskell, of this court, asked judge |
Emmons to sit with HIM In the hearing of the |
case, which was ably argued on both sides. |
Judge Heiskells opinion virtually sustained
that of Judge Emmons at Nashville, the |
former deciding against the plaintiffs, but |
upon question of jurisdiction solely. We |
remember that Judge Heiskell in his opinion |
declared that he did not touch |
upon the merits of the case, but |
held that he had no jurisdiction |
IN the cause as it had already been settled by
Judge Emmons. An appeal from Judge |
Heiskells decision was taken to the supreme
court, and we presume that the decision by
this tribunal yesterdaywas to affirm the case.
nasmuch as it it was in favor of 7. Z. Brown
md against the merchants, as announced bv
he telegram from Mr. Hammond. It is
reasonable to suppose that the decision is
made upon the question Of jurisdiction, and it
S likely that the merits of the case
we're not embraced in the decision. At anv
ate the effect Is the same, for with the de-
1sion Of Judge Emmons the merchants of
Memphis will be compelled to pay the tax on
for which levy will be enforced
~ the city council, which can only be staid by
ppeal to the United States supreme court.
The effect of this decision makes an addi-
ional tax Of ffty-four cents on the one hun
!red dollars of capital invested in business
hat the merchants Of Memphis will be COM
'elled to pay.