City of Knoxville v. Gervin

Decision Date14 January 1936
Citation89 S.W.2d 348,169 Tenn. 532
CourtTennessee Supreme Court

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Suit by the City of Knoxville against W. A. Gervin and another. From an adverse decree, defendants appeal.

Decree reversed and cause remanded, with directions.

Morse & Morse, of Knoxville, for appellants W. A. Gervin et al.

W. H Peters, Jr., and Neal B. Spahr, both of Knoxville, for appellee City of Knoxville.


The city of Knoxville brought suit in the chancery court to enforce its lien for unpaid street paving assessments levied on abutting property by municipal ordinances enacted under the authority of chapter 278 of the Acts of 1905. The bill filed on April 20, 1935, did not aver the time when the lien was created, nor when the city's cause of action accrued.

The defendants, property owners, filed a plea averring that the cause of action accrued on July 11, 1924, more than ten years prior to the filing of this suit, and was therefore barred by the statute of limitations contained in section 8601 of the Code.

The city of Knoxville thereupon filed a replication to the plea which "joined issue on the plea" and, at the same time, "set said plea down for argument." Prior to the hearing upon the plea, certified copies of municipal ordinances were filed, and for the purposes of this appeal the facts have been stipulated. From these ordinances and from the stipulation, the following relevant facts appear:

Pursuant to chapter 278 of the Acts of 1905, the city of Knoxville enacted an ordinance creating "improvement district No. 198," which includes the property involved in this cause. This improvement district was created after a petition signed by more than two-thirds of the property owners of the district had requested that certain street improvements be made. Under the terms of the statute, two-thirds of the cost was to be borne by special assessments constituting a lien against the property "until the same are paid and discharged." Section 18.

By an ordinance enacted on June 24, 1924, and effective on July 11, 1924, the special assessments, including those involved in this cause, were approved and confirmed. This ordinance contained the following provisions:

"Section 3. That the said assessments levied against the said lots shall be paid by the owners thereof in five (5) equal installments, and the first annual installment shall be on the date of the final passage and approval of this Ordinance and shall become delinquent 90 days thereafter and the remaining four installments shall become due annually thereafter, respectively, and each installment shall bear interest to run from the date of the final passage and approval of this ordinance, and the same shall be paid annually, but the owner of any of said lots may at his option pay the entire assessments with accumulated interest levied against his lot at the time of the passage and approval of this ordinance or at any time thereafter."

On the hearing upon the plea, the chancellor entered a decree finding "the issue on said plea in abatement in favor of the complainants and against the defendants" and disallowing "the said plea in abatement." The defendants excepted and prayed an appeal to this court, which was granted.

The question presented is whether or not the statute of limitations contained in section 8601 is applicable to a suit by a municipality to enforce its lien for special assessments duly authorized and levied by statute. Section 8601 is a part of the general statutes of limitations and, in so far as material to this suit, it provides that "all other cases not expressly provided for, shall be commenced within ten years after the cause of action accrued." Section 8592, also a part of the general statutes of limitations, provides that "all civil actions, other than those for causes embraced in the preceding article, shall be commenced after the cause of action has accrued, within the periods prescribed in this chapter, unless otherwise expressly provided."

The claim that statutes of limitations are inapplicable to municipalities rests upon the insistence that a municipality is an arm of the state, i. e., is the government, and that time does not run against the sovereign. However, the claim of sovereignty on behalf of counties and municipalities has never been recognized as being coextensive with the sovereignty of the state itself. For example, in U.S. Fidelity & Guaranty Co. v. Rainey, 120 Tenn. 357, 113 S.W. 397, this court held that the state in the collection of its revenue is entitled to preference and priority as an incident to its sovereignty, while such right of priority is denied to counties and municipalities. See, also, Maryland Casualty Co. v. McConnell, 148 Tenn. 656, 257 S.W. 410; Cannon County et al. v. McConnell et al., 152 Tenn. 555, 280 S.W. 24; University of Tennessee v. People's Bank, 157 Tenn. 87, 6 S.W.2d 328.

In the case of Memphis v. Looney, 68 Tenn. (9 Baxt.) 130, this court held that taxes assessed by a municipality for the public benefit stand like taxes assessed by the state and quoted approvingly the following rule laid down by Dillon in his Law of Municipal Corporations:

"Municipal corporations, as we have seen, have in some respects a double character--one public, the other (by way of distinction) private. As respects property not held for the public use or upon public trusts, and as respects contracts and rights of a private nature, there is no reason why such corporations should not fall within limitation statutes and be affected by them. For example, in an action on a contract or for a tort, a municipal corporation may plead or have pleaded against it the statute of limitations. But such corporation does not own and cannot alien public streets or places, and no laches on its part or on that of its officers can defeat the right of the public thereto."

Substantially the same rule is laid down by other text authorities, except when such writers approve a rule applying statutes of limitations to municipal corporations and not extending the principle of sovereignty in this respect to political subdivisions of the state. McQuillin Municipal Corporations, § 2489; 17 Ruling Case Law pp. 973, 974; 37 Corpus Juris pp. 715, 716.

We are content to adhere to the rule approved in Memphis v. Looney, supra, and to apply it in the present case. The general statutes of limitations contain a provision (section 8579 of the Code) that the statutes of limitations "do not apply to actions brought by the State of Tennessee, unless otherwise expressly provided." The enumerations of exceptions to a general statutory provision exclude by necessary implication all other exceptions. National Life & Accident Ins. Co. v. Dempster, 168 Tenn. 446, 454, 79 S.W.2d 564; Evans v. McCabe,

164 Tenn. 672, 679, 52 S.W.2d 159, 617; Burns v. City of Nashville, 132 Tenn. 429, 178 S.W. 1053; Lewis' Sutherland Statutory Construction, § 494. Clearly, municipalities are not excepted from our statutes of limitations and their claim to exemption therefrom must rest upon the exercise by them of a sovereign function in the matter involved.

This court has held that special assessments while in the nature of taxation are not taxes within the meaning of article 2, section 28, of the Constitution [ Arnold v. Knoxville, 115 Tenn. 195, 90 S.W. 469, 3 L.R.A. (N.S.) 837, 5 Ann.Cas. 881]; that special assessments are not taxes within the meaning of the statute barring the collection of taxes after six years [City of Knoxville v. Lee, 159 Tenn. 619, 21 S.W.2d 628]; and that ordinary remedies for the collection of taxes are not available for the enforcement of special assessments [City of South Fulton v. Parker, 160 Tenn. 634, 28 S.W.2d 639].

We have very recently held that the obligation to keep and maintain its streets is one cast upon a municipality in its corporate capacity and that in the performance of this obligation it does not act as a governmental agency of the state which created it. Shepherd v. City of Chattanooga, 168 Tenn. 153, 155, 76 S.W.2d 322.

From these holdings, we think the conclusion necessarily follows that in the enforcement of its lien for special assessments a city is asserting a right in its corporate capacity, so that it may have pleaded against it the statutes of limitations. Such right is, of course, not strictly contractual, but a special assessment levied, as this one was, under a statute requiring the request of two-thirds of the property owners in a district and thereafter requiring the approval of the city is analogous to a contractual right of the municipality which, under the rule of Judge Dillon, falls within the statutes of limitations.

Opinions of this court relied upon by counsel for the city are not inconsistent with the conclusion we have reached.

Sims v. Chattanooga, 70 Tenn. (2 Lea) 694, held that the statute of limitations will not run against the right of a municipal corporation to remove obstructions from its public streets. The authorities are generally agreed that the title to public streets which have not been abandoned cannot be acquired by adverse possession and that in asserting title to public property a municipality is acting as a governmental agency of the state. Hence, Sims v. Chattanooga is consistent with the rule laid down by Judge Dillon and heretofore approved by this court.

Elliott v. Williamson, 79 Tenn. (11 Lea) 38, held that the general statute of limitations is no defense to the enforcement of its taxes by a municipality. Obviously, in levying and collecting taxes, a municipality is asserting a prerogative of sovereignty. Its taxes are no more barred by a general statute of...

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