Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1879-03-01

and, if his receipts or city scrip were taken IN
liquidation of the amounts, ne would realize
little or nothing upon his rights. 1t Is true,
that where the course contemplated by the
act was pursued, permission was given to al
low the special assessments az payments, but
/ do not understand that the legislature abso-
lutely required this to be done, or that the
general council intended it to be done, unless
a tax was laid sufficient to cover the entire
cost of the Improvement. 1t is not true that
in all cases the word "may'' must be con-
strued as shall" The principle adduced
from the modern cases is that that exposl-
ton ought to be adopted in this case as Ia
other cases, which carries into effect the true
intent and object OF the legislature IN the
enactment; the ordinary meaning of the
language must be presumed to be intended,
unless 1t would manlfestly defeat the object
of the provisions. (Sedgwiek on statutory
law. p, 439; Miner vs. Mechanics bank OF
Alexandra, l Peters, 46, 81; Mason,
VS.. Featson, 9 Howard, 248, 250.l
in this case. II the course marked out by the
statute had been pursued, and tax had oeen
laid to cover the entire cost OF the improve
ment, l should have found little difficulty in
holding that the city was bound to credit the
special assessments; but, where such con-
struction would defeat the object of the writ,
a different rule should be applied. This
seems to have been the view adopted by
Judge Trigg in his opinion of August %,
1877, epjoinlng the defendants Rawlings and
Schaper from collecting anything but money
in payment of this tax. While laws impos-
ing taxation are required TO be uniform, 1t ID
no objection to a tax that there is a want or
uniformity In It's application. For instance,
tax of twenty-five dollars Is imposed upon
all retail dealers in liquors. This tax is uni
form, but it bears ten times heavier upon one
who only does business OF q thousand dol
lars a year, than upon one whose sales
amount to ten thousand dollars. ut Is only
where statutes are passed which pose taxa
ton on false and unjust principles, or operate
to produce gross inequality, so that they can
not be deemed IN any sense proporGonate IN
their effect on those who are to bear the puo-
he charges" Cooley on Taxation, l27) In
the imposition of taxes upon real estate great
Inequalities frequently occur in the assess
ment and valuation, beyond the reach of
the legislature or courts. If the collection Of
these mandamus taxes could be SO arranged
that every Taxpayers holding Browns re-
cerpts or city scrip could use them in pay
ment, all would receive a like benefit; but,
as has already been shown, this is now i'm
practicable, owing to the fact that the tax
was laid only sufficient to cover the balance
due him upon his contracts. But to permit
one to avail himself of this privilege, and to
deny it to another is t. produce inequality
rather than uniformity. To illustrate:
A owns two lots; In front of one the pave
ment was laid and the assessment paid. In
paving this assessment paid one Thousand
dollars more than he would have paid on this
lot had a general tax been laid over the whole
city; he now asks that the tax now laid upon
his second lot may be paid with city scrip to
the amount of the thousand dollars overpdd
upon the first. Upon the other hand, b owns
but one lot, upon which be has paid an as
| sessment greater by one thousand dollars
than he would have paid if a general tax mad
been laid, but having no other property, he
can only look for his thousand dollars over
| paid to the responsibility OF the city. The
general tax payers, then, are called upon 10
make up the thousand dollars held by A IN
| scrip and not that held by B, simply because
A happens to own another lot. | think the
| Inability CT the general tax payers should not
| depend upon an accident Of this kind, but
that all parties holding city scrip OF this issue
should be placed on an equality and required
| to look to the city for payment Leaving out
| of view the act of 1873, there seems to me no
reason for holding that compliments are en-
titled to set Oft assessments illegally but vol
unfairly paid. The general law is well settled
| that no Set-C # Is admissible against demands
for taxes, as they are not IN the nature or
| contracts between party and party, and are
the positive acts OF the government tnrerga
its various agents, binding upon the inhabit.
ants, and to the making and enforcing OF
| which their personal consent individually is
not required. (M'Cracken VS.. Eden, "a Penn.
! State, 239. Pierce VS.. Boston, 3 Metcalf, $40.
Cooley on 1aXatlOn, p. 10, IL J In Fremont
vs. =, IL Cal, SCI, it was held directly
| that equity will not relieve from a tax on the
ground that an illegal tax was collected Of
the complainant IN former years.
The fact that compliments were not parties
| to the original suit or to the proceedings
which eliminated in the orders IF March,
| 1875 and 1876, does not confer upon them
| the right to object to these orders or set them
at paught. Estate railroad tax cases, So U.
| S., SIS, 609) | see no authority for c1llect
| ing taxes levied for 1884. The judgment
upon which TIE mandamus for their colec-
| ton was based was afterward reversed by the
supreme court of the United States, and
new Judgment taken in 1875 for the balance
remaining due to Brown. The mandam1s
was in the nature Of an execution and when
the Judgment was reversed and held for
naugnt, 1t would seem the nandamus must
fall with it. But as this point was not made
by defendant Brown in his brief, am quite
| willing to reconsider it If | hive overlooked
! any material fact in this connection. think
the complainants are entitled to an injunction
| against the collection of the tax for 1873 and
1874, and also against the collection OF any
tax for this pavement upon property IN front
of which the pavement was laid and the as
sessment paid, but as to all other property
the demurrer is held good. Counsel will pre-
pare the proper order and submit it to me
for signature.