City of Memphis v. Bing

• Decision Date: 16 April 1895
• Citation: 30 S.W. 745
• Parties: CITY OF MEMPHIS v. BING et al.
• Court: Tennessee Supreme Court

30 S.W. 745

CITY OF MEMPHIS v. BING et al.

Supreme Court of Tennessee.

April 16, 1895.

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by the city of Memphis against Allen Bing and others to enforce a license tax. From a judgment for defendants, plaintiff appeals. Affirmed.

Metcalf & Walker, for appellant. John T. Moss and J. P. Edmondson, for appellees.

McALISTER, J.

This is a proceeding by the city of Memphis against the defendant Bing and twenty other Chinamen to enforce against each defendant the payment of a license tax for the privilege of conducting a public laundry in the city. The circuit judge, who heard the case without a jury, was of opinion the defendants were not liable for the tax, and pronounced judgment in their favor. The city appealed. It bases its right to collect this tax upon the general revenue act of 1893 (chapter 89, § 4, p. 135), which declares that public laundries, other than steam, shall pay each, per annum, $15. The insistence is that the legislature by this act declared this business a taxable privilege, not only for the benefit of the state, but likewise for the benefit of the taxing district. This act was approved April 10, 1893, and up to that date the business of hand laundries had never been declared a taxable privilege. A few days prior to the passage of this act, to wit, on the 5th of April, 1893, the legislature passed an act restoring to the city of Memphis the power to levy taxes on property and privileges. Prior to this date the general assembly of the state assessed taxes on property and privileges for the city of Memphis, which was then known as the "taxing district." By the act of 1893 the city was rehabilitated with corporate autonomy, and authorized to exercise the taxing power as an arm of the state government. The city was thus clothed with the power to levy a tax for municipal purposes upon occupations and vocations declared to be privileges by the laws of the state. The act of April 10, 1893, declared the business of public hand laundries to be a privilege, and levied a tax thereon of $15 for state purposes. The city of Memphis, however, has not, by ordinance or other corporate act, laid any tax upon this occupation for municipal purposes. An ingenious argument, however, has been submitted by counsel for the city to show that such legislation on the part of the city was unnecessary, for the reason that the legislature had already laid a tax upon this business for the benefit of the taxing district, and that, when the act of April 5, 1893, was passed, restoring the taxing power to the city, it was expressly provided "that all laws imposing privilege taxes for said municipality shall remain in force until changed by the state or by such municipality under the authority here delegated." It will be remembered that under the act of 1879 all taxes on privileges and property were levied for the municipality directly by the state. This statute enumerated a catalogue of privileges, and taxed them all for municipal purposes. This act further provided that "there is hereby assessed on all privileges not herein specifically enumerated a tax equal to the tax assessed for state purposes, the same to be collected as other privileges are collected." This act was amended by the act of 1881 fixing the minimum tax on such privileges at $10. When this legislation was enacted, in 1879 and 1881, the state had not declared the business of a public hand laundry to be a taxable privilege, and no such legislation was enacted until the 10th of April, 1893, or more than 12 years thereafter. The determinative question, then, is whether the act of 1881, assessing a tax on all privileges not therein specifically enumerated, fixes a tax upon a privilege not then created, and not...