Year: 1875

| money capital loaned or upon money


vested in bankruptcy, or in any species


OF manufacturing or mining or upon


any other corporation exceeding the


aUount Of tax levied by the State upon


such capital" This section of the act


it is contended, is unconstitutional. We


will examine this section hereafter. We


do not propose to give our views al


length, but only the conclusions we have


arrived at.


First-It is said that the city Of Mem


phis has no power to issue distress war.


rants for the collection Of its taxes


There is some doubt as to whether there


is any specific act Of the legislature now


unrepealed which authorizes directly the


issuance Of warrants. In a multiplicity


OF legislation this power, which once


existed by special law, may have been


repealed or omitted. However that


may be, the power exists by ordinance,


and such authority was recognized by


the supreme court in ii Humphreys,


A9, and also by the court Is Humphreysj


speaks Of such warrant as an imme-


mortal right. We think the city has the


power to issue distress warrants for its


taxes.


Second-The next question that arises


Is as 10 the power to levy taxes upon the


shares OF non-residents. There can be


no question but that the State can, under


the national banking law, collect taxes


upon shares of national banks when


the shareholder lives in the State, but


we do not think that the city can tax


non-residents upon their shares either


in national or State banks unless so pro-


vlded In their charters. We think the


nine Yerger case settles this question


upon principle. Stock in accordance with


all the authorities, is in the nature Of o


chose IL action and can have no locality,


II must therefore of necessity follow the


person of the owner. The court says it is
not money, the money in the bank is


the property of the institution, and to


the ownership of which the stockholder


has no claim; his right is to receive the


dividends. The State can tax tangible


and visible property within its jurisdic.


ton no matter where the owner may re-
side. But as to stocks, bonds, ETC., be-


longing to nOn-residents the State has


no jurisdiction to tax. When there


is jurisdiction, neither as to person nor


property, the imposition Of tax would


be ultra TireS and void. The case in


seven Heiskell is not in conflict with


this view.


Third-The charter OF the board of
education of the city has never been re-
pealed. 1t was not a part of the city
charter. Each was complete within it.
self and Independent of the other, and
hence the act of December, 1859, repeal
ing the old city charter did not effect the
board of education.


Fourth-Thesec cases turn mainly upon
a construction Of the eighty-first section
of the act Of 1873, set forth fully in the
beginning Of this opinion.


The complainants, in order to obtain
the benefits Of this section, will have to
ask this court to declare all the revenue
laws Of the city 81 utterly void and of no
effect. These laws will necessarily have
to be declared unconstitutional if this
section eighty-One stands. The COM
plRiEants are confronted, in Emine, by
all the considerations which they have
so gravely and sOlemnly urged as
proper to weigh with tho cnnrt nm
under such circumstances. Ali laws
in pdTi DlGteria will be construed
together. Therefore the revenue laws of
1873 upon this view will be read by the
court as though all the taxing power
conferred upon the city by its charter
were embodied in it. 1t will be seen
that the different clauses Of the charter
upon this subject always confer the
power to tax coupled with the specific
purpose for which it is to be exercised.
As, for instance, the power to tax for
general purposes, not to exceed one per
cent; tax to pay interest, not to exceed
the amount necessary for that purpose;
tax for sinking fund, not more than one
half per cent, ETC., etc. The city de-
rives its taxing power, except as to
school tax, solely from the charter pro-
visions. There is no general law and
no provision OF revenue law which
confers it. The revenue law of 1873,
read with these charter powers embod-
led in it, makes express power to the
city to tax all taxable proper
ty not exceeding one per cent. for
one purpose, not exceeding one
half per cent. for another purpose,
and so on. Superadded to these sections
there is a clause in the charter of the
school board giving the city the power
to levy and collect special tax for school
purposes. These are enabling enact
ments, expressly authorized by the con-
and in accord, therefore, with
the policy Of the State in reference to
corporations. Associated with
these enabling enactments thus grouped,
we find section 81 of the revenue law,
which declares that municipal corpor-
ations shall not levy q tax upon money
capital loaned, or upon any money
vested in banking, or in any species Of
or mining, or upon any
other corporation exceeding the amount
Of tax levied by the State upon such
capital" This section is prohibitory in
with the enabling character of
the other enactments which affect the
city. Its effect, il operative, is to exempt
the capital enumerated in it from
the higher rate of taxation authorized
by the other provisions for the benefit of
the city. In truth this section is, in ef-
feet, q proviso, just as much as IL the
prefix provided that" stood before il.
with the other provisions it
would produce the inequality in taxa
ton which the constitution forbids, and
Tor this reason all cannot stand. But it
Is q case in which all do not necessarily
fall; and the question is, which must
give way? II the prohibitory clause
stands the proviso is sustained, and it
strikes down the whole revenue system
Of the city, school tax and all, defeats
all the purposes which have been thought
worthy Of special and express legisla-
live attention and support, paralyZes the
arm, and crushes the school
system. We say section eighty-one
should be defeated. 1t is Of miner
as so well said bv the su-
preme court in Heiskell, 399. 1t is |
most reasonable so to hold. And to the |
same effect in Gillian versus City, ETC.,
? Black, $40, and many other authori. |
ties. Because the policy OF the State re-
4uires it. Because it was not the inten-
ton Of the legislature that section 81 |
should abrogate the enactments under |
which all the taxes Of the city are to be
levied. Upon the question Of intention |
two intentions appear. The first is that |
The city OF Memphis should have power |
TO tax all taxable property to the extent
necessary to its municipal existence and |
he maintenance of its school system. |
The other intention is that property spe-
,ified in section 81 should be exempt
rom municipal taxation beyond forty