City of Knoxville v. Lee

• Decision Date: 16 November 1929
• Parties: CITY OF KNOXVILLE v. LEE et al.
• Court: Tennessee Supreme Court

21 S.W.2d 628

159 Tenn. 619

CITY OF KNOXVILLE v. LEE et al.

Supreme Court of Tennessee.

November 16, 1929

Appeal from Chancery Court, Knox County; Robert M. Jones, Judge.

Suit by the City of Knoxville against R. E. Lee and others to enforce a lien for unpaid installments past due on paving assessments. Decree for defendants, and complainant appeals. Reversed and rendered.

W. H Peters, Jr., and J. Pike Powers, Jr., both of Knoxville, for complainant.

Norman B. Morrell, Hal H. Clements, and Roderick D. Busbee, Jr., all of Knoxville, for defendants.

CHAMBLISS J.

To the suit of the city to enforce its lien for unpaid installments past due on paving assessments levied on abutting property under chapter 278 of Acts of 1905, the owner pleaded the statute barring the collection of taxes after six years being chapter 24, § 1, Acts of 1885, Shannon's Code, § 821.

Hearing the cause on a stipulation which reduced the issues to the sole question of the applicability of this general statute to paving assessment levies, the chancellor sustained the plea and the city has appealed.

The question is one of first impression in this state, and decisions in other jurisdictions have turned largely on particular statutes, or conditions. Views expressed in some of these opinions are pertinent and persuasive, and will be referred to later.

Based (1) on the common-law rule that the state is never barred by limitation statutes unless expressly so provided: (2) insisting that paving assessment levies, while in a sense a form of taxation, belong to a distinct and independent classification from general taxes, differing essentially and fundamentally therefrom; and (3) relying on the rule of construction expressio unius est exclusio alterius-counsel for the city stress the language of the statute, which reads as follows:

"An Act to Regulate the Time of Collection of Taxes. Section 1. Be it enacted by the General Assembly of the State of Tennessee, That all State, school, county, railroad and municipal taxes assessed on property, and all State, county, or municipal privilege taxes, and all poll taxes that hereafter fall due shall be barred, and any lien for such taxes be cancelled and extinguished, unless the same are collected or suits for the collection shall have been instituted within six years from the 1st of January of the year for which such taxes accrued.

Sec. 2. Be it further enacted, That it shall be the duty of the court, in which proceeding, concerning the collection of taxes, may be brought where the same shall be barred under the provision of the first section of this Act, when this statute is pleaded and the truth of the plea appears to the satisfaction of the court, to dismiss the cause, and order that the officer having the respective tax books in charge, enter thereon opposite the name of the taxpayer a memorandum of the judgment of the court.

Sec. 3. Be it further enacted, That this Act take effect from and after its passage, the public welfare requiring it."

It will be observed that the caption is, "An Act to Regulate the Time of Collection of Taxes." The statute in its body enumerates three classes of taxes (1) state, county, and municipal, assessed on property, that is, ad valorem taxes, (2) privilege, and (3) poll taxes. The argument is that paving levies on abutting property are not expressly included. This is sound, if such levies are not within the definition of "municipal taxes assessed on property."

Looking to the language of the act of 1905 authorizing such assessments, it is significant that they are not described as "taxes," but that, on the contrary, a distinction appears to be recognized between such "special levies or assessments"-the descriptive phrase running through the act-and general taxes. For example, it is provided that, "such special levy shall be payable to the proper official of said city or town to whom general taxes are paid." Section 7. And again, "payment of such special levies or assessments * * * may be enforced * * * as the payment of taxes is now enforced," etc. Id. The theory of distinctive classification thus finds support.

Constitutional authority for such levies was first recognized in this state in Arnold v. Knoxville, 115 Tenn. 195, 90 S.W. 469, 473, 3 L. R. A. (N. S.) 837, 5 Ann. Cas. 881, and the validity of the act of 1905 was therein upheld on the ground that, while a species of taxation, they belong to a classification so fundamentally distinctive as to be "not taxes within the sense of the Constitution (article 2, § 28) requiring all property to be taxed according to value." All of the three forms of taxes enumerated in the limitation statute of 1885 are subject to the uniformity and equality requirements of our Constitution. This is significant.

Says Mr. Justice Wilkes in the Arnold Case, "while special assessments are in the nature of taxation, still they are not taxation for general governmental purposes, in the sense provided for in the Constitution. They are different in many respects." Emphasizing one of these differences, he says, "Special assessments are based upon theory that property assessed will be specially benefited thereby above the benefits received by the public at large."

Baldwin's Bouvier defines the word "tax" as "a pecuniary burden imposed for the support of the Government." In connection with this general definition, and as particularly pertinent to the question now under consideration, it is said that "taxes are not debts, nor do they embrace local assessments," citing authorities. Further on it is said that "municipal assessments made for local improvements, though resting for their foundation upon the taxing power, are distinguishable in many ways from taxes levied for general state or municipal purposes." Illustrating the distinction, this authority calls attention to the holdings that assessments for street improvements are not a tax within an agreement by a tenant to pay "taxes." De Clercq v. Barber Paving Co., 167 Ill. 215, 47 N.E. 367, is cited, and, looking to the opinion in that case, we find the statement that "there is a clear and manifest distinction between a tax and a special assessment. A tax is imposed for a general or public purpose. It is levied for the purpose of carrying on the government. It is a charge on lands and other property which lessens its value, and in the proportion in which the owner is required to pay is his pecuniary ability diminished. This is the sense in which the term 'taxation' is used and understood. On the other hand, a special assessment contains none of the distinctive features of a tax. It is assessed or levied for a special purpose, and not for a general purpose. It is not a charge on property which reduces its...