Demoval v. Davidson County (State Report Title: Demoville & Co. v. Davidson County)

• Decision Date: 17 January 1889
• Citation: 10 S.W. 353,87 Tenn. 214
• Parties: DEMOVAL et al. v. DAVIDSON COUNTY. [*]
• Court: Tennessee Supreme Court

10 S.W. 353

87 Tenn. 214

DEMOVAL et al. v. DAVIDSON COUNTY. ^[*]

Supreme Court of Tennessee.

January 17, 1889

Appeal from chancery court, Davidson county; ANDREW ALLISON Chancellor.

Bill for injunction, filed by complainant Demoval and others against Davidson county, to compel it to dismiss an action pending against him for the recovery of liquor dealer's tax. There was a decree granting the relief prayed for, and defendant appeals.

Atty Gen. G. W. Pickle, Thos. J Freeman, and J. B. Daniels, for appellant.

East & Fogg and Demoss & Malone, for appellees.

LURTON J.

The material question arising upon this appeal involves the constitutionality of an act of the legislature passed March 9, 1887, entitled "An act to relieve druggists of all taxes that have accrued against them as liquor dealers under the revenue laws of 1881-82, 1883-84, and 1885-86." This act is as follows: ""Section 1 Be it enacted by the general assembly of the state of Tennessee, that all druggists in this state who have made themselves liable for taxes as liquor dealers under the revenue laws of 1881-82 1883-84, and 1885-86, making them liquor dealers, and who were not in fact using the druggist license as a blind, but were in good faith only selling the prohibited articles as medicine, be, and they are hereby, relieved from all liability for those years. Sec. 2. Be it further enacted that in all cases falling under the provisions of the foregoing section, where suits have been brought and are now pending in any of the courts, the same shall be dismissed at defendant's cost, and that defendants shall be liable for and pay all attorney's fees due by the state for the institution and prosecution of suits against druggists under the laws of 1881-82, 1883-84, and 1885-86. Sec. 3. Be it further enacted that this act shall take effect from and after its passage; the public welfare requiring it." Acts 1887, p. 179.

The first objection urged is that the act is in violation of article 11, § 8, of the constitution, which reads as follows "The legislature shall have no power to suspend any general law for the benefit of any particular individuals; nor to pass any law for the benefit of individuals, inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals rights, privileges, immunities, or exemptions other than such as may be by the same law extended to any member of the community who may be able to bring himself within the provisions of such law." This clause ""does not prohibit legislation for the benefit of classes composed of any members of the community who may bring themselves within the class." Davis v. State, 3 Lea, 380. But it is argued that all liquor dealers constitute a class, and that this act singles out one portion of the class, to-wit, druggists who have sold for medicinal purposes only, and extends relief alone to them. But druggists are not liquor dealers in any true sense. It is a fact of common knowledge that the sale of liquors for medicinal purposes has until very lately been a recognized part of the ordinary and legitimate business of a druggist, and permissible under the ordinary license of a merchant engaged in the drug business. If a druggist sold liquors as a beverage, he became thereby, in fact, as well as in law, a liquor dealer. The revenue laws of 1881-82 and subsequent years were extended to druggists who sold liquors for any other than sacramental uses. Thus druggists, as a class, eo nomine, were required to pay the liquor dealer's privilege tax if they sold even for medical purposes. These acts were construed, and their validity passed upon, in the Druggist's Tax Cases, reported in 1 Pickle, 449, 3 S.W. 490. The act now under consideration extends relief to all this class who have made themselves liable to such tax for the years named therein, who have not, by the character of their sales, made themselves liquor dealers in fact; that is, the relief is extended to all of the class of druggists who have sold for medicinal purposes only, while those who have sold as a beverage, and thereby become members of the "liquor dealer" class, are not relieved.

The class thus described by the act forms a natural, and not an arbitrary, class, and legislation with regard to this class is not for the benefit of individuals within the meaning of the constitution. But it is said that the act makes no provisions for the return of the tax to such as have paid it, and that it is therefore partial. This might be dismissed with the suggestion that it does not appear that there are any such. But would this be an objection to such an act? This liability, after it was incurred, became a debt due the state, and the relation of debtor and creditor existed. Can the state release or compromise with its debtors? Resolutions and acts releasing bail-bond forfeitures, and compromising or releasing sureties upon the bonds of revenue and other officers, are not uncommon, and their validity has been unquestioned. That the power to settle, compromise, and even release a liability due the state ought to exist somewhere, is most obvious. Concerning this power this court, in McEwen's Case, reported in 5 Humph. 242, said: "That the legislature of the state, in the absence of constitutional prohibition, is the proper guardian and protector of its funds, no matter for what purpose appropriated, and that as such it is its duty to watch over them, to see that they are properly secured, vested, and applied as the law may direct, is a proposition so palpably in accordance with reason and necessity that it were a waste of time to enter into an argument to prove it. It necessarily follows that if these funds, or any portion of them, be out of the treasury, and in the hands of a citizen, the power to collect, compromise, and arrange the same with the citizen belongs to the legislature, to be exercised according to its best judgment, for the security and prosperity of the state, and upon principles of right and justice to the citizen. This power on the part of the legislature is supreme, and when exercised cannot be revised or called in question by any other power whatever; and it may be exercised by that body in its collective capacity, or it may be delegated to a commission, the decision of which, when made in pursuance of the power delegated, is equally final and conclusive." 5 Humph. 285.

The legislative power of the general assembly of this state extends to every subject, except in so far as it is prohibited, either by the delegated power of the federal government, or by the restrictions of our own constitution. Davis v. State, 3 Lea, 376. He who would show the unconstitutionality of an act of the legislature, must be able to put his finger upon the provisions of the constitution violated. That the power of compromising or releasing a liability may be abused, is no answer to its existence. All human power is liable to abuse. The power of public opinion, the responsibility of legislators to their constituents, are likely to...