Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1879-03-01
AMI also EDjOined from Collecting any
Tax for the EicOls0n Pavement
Upon Property in Front OF
which the Pavement was
Laid and Assessment
Paid.

Yesterday the following opinion of Judge
Brown, of the Michigan United States dis
trict court, on the Nicolson pavement case
which he heard In Memphis, was received
by the clerk OF the circuit court. Ihe opiI-
iOH is lengthy but interesting to ali tax
payers 10y whom the Nlcolson pavement
mandamuses were considered oppressive.
The opinion embraces the entire question at
issue between certain taxpayers and I. h.
Brown ct al, and upon many questions de-
cides in favor of the taxpayers. The case
will be appealed to the United States supreme
court by L. Il. Brown.
The circuit court Of the United States for the west
ern district OF tennessee In equity 90 ,,a,n,,,s
Talmage Z Brown and John j. Rawlings and
Frederick c. Schaper, tax-colectors, upon a de-
murrer TO a bill praying for an Injunction against
the collection Of a tax.
Compliments are citizens of Shelby county,
Tennessee, and property wners and tax
payers Of the city of Memphis. Defendant
Brown is a citizen of Iowa, and Rawlings and
Schaper are tax-collectors of the city of
Memphis. By an act of the legislature
passed November "A, 1866, the city of Mem
phs was empowered to lay NlcesOn and
stone pavement, ETC., and to charge the en-
tire cost of such improvements on the abut-
ting property. By virtue CT this act and IN
pursuance thereof, the city, by ordinance,
provided for paving certain streets with
Nicolson pavement and certain alleys with
stone. Contracts were made by the city with
certain firms to lay such pavements, and part
of the work was done, when defendant
Brown became the assignee OF such con-
tracts, and completed the work. In pufsu-
ance of the system adopted, bills were made
out as the work progressed, against the own
ers of property abutting upon said improve
ments for the entire cost OF the pavement to
the center of the street IN front of such lots,
and payment thereof demanded of the own
erJ. Und n threats OF suit complalnauts
severally paid to Brown the entire cost OF
making said improvement in front OF their
several pieces of property, for which payment
Brown gave receipts IN full, as against them,
fer their part of such Improvements. Most
Of the citizens whose property was on these
paved streets, resisted this mode of collection
and assessment. and refused to pay. Numer-
GUS bills were fled against such 10y Brown,
which were resisted In the courts, and IN
1872 the supreme court of Tennessee de-
ciared that the act of the Legislature OF No
vember "A, 1865, pretending to authorize the
city to make the assessment By frontage to
pay the cost of the pavement, was uncon-
stitutional and void. After this decision,
Brown, by suit in this court against the
city of Memphis. on the thirteenth OF March,
1872, recovered judgment against the city for
$4SS, 993 for said work, from which judgment
the clty took an appeal to the supreme court
of the United States, but being unable to
give a supersedeas bond, the judgment stood
in force pending the appeal. Upon the
hearing of the appeal in the supreme court,
| the decree of Ibis court was reversed n part
and the cause renamed 20 tGlS court, In
which, on the fifteenth of March, 1875, new
decree was rendered in the sam OF S292,-
| 1873 AZ. BY an act of the legislature passed
/ on the eighteenth day of March, 1873, It was
| enacted taat "where an Incorporated town
| or city has, by virtue Of presumed author
| ity to levy special assessments Tor
| sDecifc purposes, levied and collected
/ taxes or special assessments, the right to
| make which special assessment was alter
| ward declared void by the supreme court OF
the State, said town or city shall nave power
/ To levy tax, in addition to ell other taxes
allowed by law to be levied, sufficient to
| cover the entire coat of the Improvement,
| r;ib interest thereon, for which said special
easements were illegally made. And IN
| Tbe Ievyip0 of such additional tax authority
| Is hereby given to such town or CITY 70 allow
/ az valid payments on such addltlonal TAX
! any sum or sums, with interest," pau " pei E
/ sons in satisfaction, or IN part satisfaction, OF
| said special assessments Illegally levied ana
1 collected az aforesaid" After the passage
| Of this act. on the twenty fourth OF June,
1879 a writ of mandamus vas granted
AGAINST the city, commanding 1t TO- levy d rag rag
| to paw Browns then Judgment OF S49o. $50
| the city having taken an appeal WlSnouG d
| g1DerSedeaS, lQlS was bQ6 uLeb HAnHS-tft
| and was predicated upon the aforesaid act at
| 1873 In pursuance of this act, the general
| council OF the city of Memphis passed an
| ,,r6;rance to provide for the issuance or Ger
| tifcates cf indebtedness to all persons who
had paid assessments, which certlhcateS pro-
| yided upon their face that they should De re-
celvable in payment OF any tax leVleu y
cover fine entire cost of the AIcolson pave
mant In pursuance of this mauGamus OF
lime "a, 1873, the city of Memphis levied
| tax of seventy cents on eaeh enc Lenotet
dollars worth of taxable property to pa!
! Browns then Judgment. For 1874, Wlthou
| maudamus, the city levied tax OF thirt.
cents, for the same judgment, voluntarily
upon ali the taxable property OF the city, In
ciudipg the property of these compliments
ami sought to collect tie same IN money
On the twenty second CT ERrch, 1919
the act of March Is, 1879, F2
repealed, and upon the came day Brown hie'
in this court petition ior aa aiternatiV
mapdamus against the city, claiming
balance of 1892, 1873 AZ found to be due hin
| ~ The decree of March Is, 1875, and pray
~, that the city be required to levy ia
each year. forI75, rs and ", sufficient, ate
oIIHy;ne, for .-~rors, deliuquencies, lDsolven
/ cias and defaults. to reRize Sl25,OOO eac
wear. The answer o. the city was ALed, an
on the twenty eighth of jane, 1910; tIl
pmDtoIy mandamus was issued. On the mint
I Va
the peremptory writ, presenting Enndry eS
cuses for not promptly obeylng such %rl
and submitting certain legal questions 10 Ia
| court for its decision, for its own guidance !
Lowing a tax. Among other questions WeL
l | the following: First-Whether those 10!
, | upon which the frontage-taX had neen pal
2 v1,.re exempt? Second-Whether the mint
and tenth wards, which had been taken ln'
. the city after the contracts with Brown 8 a.
e slgpors. were exempt? Tnird-Whether IL
Il capital OF merchants should be included
Z the levy as subject to such tax? On Marc
,, 1876, upon due consideration o. the ma
!, ter set forth IN said return OF February ~
7 and the affidavit of Brown fled upon Marc
e lst, the court adjudged the ninth and tent
y wards and the propert yupon which the a
.e | sessment had been paid exempt, but held u
e merchants capital liable, and ordered
alias writ, commanding levy OF an aoo
!. tionaI tax, sufficient, excluding the exemptt
property, to pay the residue OF Brown
u Judgment From these orders appeals we
Is taken to the supreme court of the Unit
a States. where such orders were afterward q
" 6rmed and are still in force. The bill
t. compIaiuants now filed sets forth that tn
sr a.e the owners of lots in front
T. which payements were laid and the &C
/, thereof paid to Brown ana for such sun
Is thus collected, BroEn gave receipts IN Il
Id satisfaction of the cost Of the pavement
~ font of the lots designated. 1t claims II
as Independently of the judgment of March
e. 1876, in the mandamus proceedings, Bro'
. is estopped from demanding all Addition
tn tax on said property. The frontage tax
necessarily larger than the pro rata share
the particular property would be IN a gene
tax, because bv the frontage tax the wa
no cost Of the pavement was imposed on SIN
ne portion OF the property IL the city, whllt
N0 general tax would cover the whole, 1elce,
any contingency, those who paid the itoi
ii ace tax have paid mere than their just sh.
nd Of the entire cost of the pavement. The
- further claims that the act OF March "a, J
We was the only aAInoriVy gIanteu py tIe 'ee