City of Morristown v. Hamblen County

• Decision Date: 05 October 1916
• Parties: MAYOR AND ALDERMEN OF MORRISTOWN v. HAMBLEN COUNTY.
• Court: Tennessee Supreme Court

188 S.W. 796

136 Tenn. 242

MAYOR AND ALDERMEN OF MORRISTOWN v. HAMBLEN COUNTY.

Supreme Court of Tennessee.

October 5, 1916

Appeal from Chancery Court, Hamblen County; Hugh G. Kyle Chancellor.

Suit by the Mayor and Aldermen of Morristown against Hamblen County. From a judgment for plaintiff, and a mandamus ordered for the levy of a tax, defendant appeals. Reversed, demurrer sustained, and bill dismissed.

W. N Hickey, of Morristown, for appellant.

McCanless Coleman & Taylor and Holloway & Hickey, all of Morristown for appellee.

NEIL C.J.

Chapter 501 of the Acts of 1911, § 1, as amended by chapter 2 of the Acts of 1913, provides that:

For cities standing on a population basis within which falls Morristown it shall be lawful for the legislative body of said cities or towns, upon petition signed by the owner or owners of 51% of the frontage of the lots or parcels of land on such portion of any street, highway, or alley, as set out in the petition, within the corporate limits of said city or town, not less than one block or the space between two cross streets in length, to provide by resolution or ordinance for the improvement of such street, avenue, highway, or alley by opening, widening, extending, grading, paving, graveling, macadamizing, guttering, constructing sidewalks thereon, curbing and parking, or otherwise improving the same or a part thereof not less than one block in length as aforesaid, and to provide for the making and collecting of special levies or assessments upon the land abutting on such street, highway, avenue, or alley to be improved in the manner hereinafter set forth and to pay for said improvement."

Other sections of the act provide that the proportion of the expense applicable to any particular lot shall constitute a lien upon the lot, and that such expense may be collected as taxes are usually collected. The bill charges that an improvement district was organized in Morristown, in which district was included the lot on which rests the county courthouse. The present suit was brought to recover of the county such part of the expense as was applicable to that lot. A demurrer was filed containing several grounds, but the substance of them all was that the bill stated no case against the county. The chancellor overruled the demurrer. The county thereupon refused to plead further, and a judgment pro confesso was taken, and a decree rendered against the county for the amount alleged to be due, and a mandamus ordered for the levying of a tax to pay it. The case was then appealed.

The general question presented by the briefs of counsel is whether the property of a county can be made liable for improvements on a street, or streets, on which the said property abuts, effected under the assumed authority of an act, which does not specially authorize assessments for the purpose against such county property.

The act contains no direct or special authority for the making of such special assessment on the county's property. The property of the county, in fact, is not mentioned at all in the act, and if the liability be adjudged it must be on the assumption that a general act will confer the power.

We are of the opinion that the power must be specially conferred in order to affect the county, since it is but an arm of the state government. As said in Keith v. Funding Board, 127 Tenn. 441, 464, 155 S.W. 142, 148 (Ann. Cas. 1914B, 1145):

"We recognize the rule of construction that leaves the sovereign not included in, but, so to speak, withdrawn from, the general language of a statute or constitution, unless specifically mentioned."

Another statement of the doctrine is found in State v. Crutcher's Adm'r, 32 Tenn. (2 Swan) 505, 509, quoting with approval the language of Mr. Justice Story in United States v. Hoar, 2 Mason, 311, 314, Fed. Cas. No. 15,373:

"Where the government is not expressly, or by necessary implication, included, it ought to be clear, from the nature of the mischief to be redressed, or the language used, that the government itself was in contemplation of the Legislature, before a court of law would be authorized to put such an interpretation upon the statute."

As said in Jones v. Tatham, 20 Pa. 398:

"Words of a statute applying to private rights do not affect those of a state. This principle is well established, and is indispensable to the security of the public rights. The general business of the legislative power is to establish laws for individuals, not for the sovereign; and, when the rights of the commonwealth are to be transferred or affected, the intention must be plainly expressed or necessarily implied."

In Directors of Poor v. School Directors, 42 Pa. 21, Chief Justice Lowrie says:

"The public is never subject to tax laws, and no portion of it can be without express statute. No exemption law is needed for any public property, held as such."

The foregoing cases are cited and approved in City of Pittsburg v. Sterrett Subdistrict School, 204 Pa. 635, 54 A. 463, 61 L. R. A. 183, and after an examination of these and other authorities it is said, in the latter opinion, that local assessments are a form of taxes, and the opinion continues:

"The same view is entertained in many other states, and it is there held that the general language * * * authorizing assessments for local improvements does not apply to property held by the state or a political subdivision thereof and devoted strictly to public use." Clinton v. Henry County, 115 Mo. 557, 22 S.W. 494, 37 Am. St. Rep. 415; Board of Improvement v. Little Rock School District, 56 Ark. 354, 19 S.W. 969, 16 L. R. A. 418, 35 Am. St. Rep. 108.

Other authorities are cited in the opinion just mentioned, which contains quite a full discussion of the subject.

The principle is well settled in this state that tax laws do not apply to the property of the state, or any of the arms of the state government, unless they are specially mentioned...