City of Dayton v. Dayton Coal & Iron Co.

• Decision Date: 10 September 1897
• Citation: 43 S.W. 740
• Parties: CITY OF DAYTON v. DAYTON COAL & IRON CO.
• Court: Tennessee Supreme Court

43 S.W. 740

CITY OF DAYTON v. DAYTON COAL & IRON CO.

Court of Chancery Appeals of Tennessee.

September 10, 1897.

Appeal from chancery court, Rhea county; T. M. McConnell, Chancellor.

Bill by the city of Dayton against the Dayton Coal & Iron Company, to collect a tax. The bill was dismissed, and complainant appeals. Affirmed.

S. W. Swabey, for appellant. Burkett, Miller & Mansfield, for appellee.

BARTON, J.

The question in this case is as to the validity of a charter under which a former supposed municipal corporation of the town of Dayton acted. The complainant is a municipal corporation organized under chapter 117, Acts 1895. It has filed this bill to collect a tax from the defendant, on its business as a merchant, on an average stock of $15,000, which tax was levied by the former municipality of Dayton in the year 1891; section 25, c. 117, Acts 1895, under which act complainant was chartered and organized, having provided that the new corporation should be vested with the title and ownership of all the property, claims, and assets of the old. The defense is that the former body, whose authorities levied the tax in question, has no power or authority to do so, having no legal existence. It is undisputed that the charter of this alleged municipal corporation did not have the return of the sheriff or officer holding the election indorsed thereon, as required by law, and that no such certificate was registered as was required by the act of 1877, under which this supposed municipality was sought to be chartered and organized. This was wholly wanting. As was decided in the case of Ruohr v. Athens, 91 Tenn. 20, 18 S. W. 400, this was fatally defective; and there was no such corporation, in contemplation of law, and the persons assuming to act thereunder had no authority to levy the tax sought to be collected. It is insisted, however, that the act of 1895 cured this defect; but if such void proceeding could by an express act be given any vitality, which we doubt, the act of 1895, in express terms, provided "that nothing in the act contained should be construed as a legislative recognition of the validity or invalidity of the previous charter." There is therefore nothing in this contention. The chancellor dismissed the bill. His decree is affirmed, with costs.

WILSON and NEIL, JJ., concur.

Affirmed orally by supreme court October 23, 1897.