Fleming v. City of Memphis

• Decision Date: 22 June 1912
• Citation: 148 S.W. 1057,126 Tenn. 331
• Parties: FLEMING v. CITY OF MEMPHIS.
• Court: Tennessee Supreme Court

148 S.W. 1057

126 Tenn. 331

FLEMING v. CITY OF MEMPHIS.

Supreme Court of Tennessee.

June 22, 1912

On Petition to Rehear, June 22, 1912.

Certiorari to Court of Civil Appeals.

Action by Annie E. Fleming, by next friend, against the City of Memphis. A judgment for defendant was affirmed by the Court of Civil Appeals, and plaintiff brings certiorari. Reversed and remanded.

James H. Malone, for plaintiff.

C. M Bryan and Leo Goodman, for defendant.

LANSDEN J.

Plaintiff sued the city of Memphis for damages for injuries which she received as the result of the alleged negligence of the defendant in maintaining certain streets, so as to suffer a dangerous hole, ditch, or washout to be and remain thereon. The city demurred to the declaration, assigning as cause thereof that the plaintiff was not entitled to recover in this case because the city of Memphis "by special dispensation from the Legislature is not liable for the negligence of its agents, employés, and servants in the construction of bridges and highways, nor for their negligence in leaving the same in a dangerous condition in the city of Memphis."

The question presented for determination is the validity of Acts 1879, c. 11, as amended by chapter 96 of the Acts of 1881 which, after amendment, reads as follows:

"That the counties in which the taxing districts are situated and the taxing districts themselves shall not be liable for damages, or injuries to persons, or property, by reason of defects in the streets or alleys or other property under the control, and within said taxing districts, or for the conduct of those managing the affairs of such districts."

This statute applies to no other municipality than the city of Memphis. The learned trial judge sustained the demurrer and dismissed the suit, which action was affirmed by the Court of Civil Appeals upon the authority of Williams v. Taxing District, 16 Lea, 531, and an unreported case said to have been decided by this court in 1907. Section 8 of article 11 of the Constitution of this state provides as follows:

"The Legislature shall have no power to suspend any general law for the benefit of any particular individual, 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 an individual or individuals, rights, privileges, immunities or exceptions other than such as may be extended to any member of the community who may be able to bring himself within the provisions of such law."

We think it too clear for argument at this late day that the exemption, or "special dispensation," as counsel denominate it, in favor of the city of Memphis in the foregoing provision of its charter, is violative of the section of the Constitution just quoted. This question has been determined time and again by this court, and resort need not be had to other authority than our own reported cases. There is not a single case, unless it be Williams v. Taxing District, supra, which intimates to the contrary. Commencing with our latest case of Malone v. Williams, 118 Tenn. 425, 103 S.W. 807, 121 Am. St. Rep. 1002, we will review only a few of them. In this last case, the court said:

"It is true that the Legislature has power to grant special charters to municipal corporations, and may, in general, include within those charters such peculiar provisions, not to conflict with the Constitution, as may be needed for the convenience and well-being of the particular community. But where these provisions are so general as to fall within a classification common to all the citizens of the state, there can be no justification for erecting a single city into a class by itself, with provisions more onerous than are imposed upon all other citizens occupying the same situation, or more advantageous. It was so held many years ago, in a case cited infra, where the Legislature attempted to exonerate the city of Memphis from the burden of executing cost or appeal bonds. By the general law of the state, applicable to all citizens, tax officers are permitted to distrain for delinquent taxes. Nowhere else in the state are they permitted to distrain for tax not delinquent except in the city of Memphis, under the section above quoted. The said section creates an unconstitutional discrimination in favor of the city of Memphis, and thus is in violation of the section of the Constitution above referred to."

It is true that laws public in their character, and otherwise unobjectionable, may extend to all citizens or be confined to particular classes. With respect to the provision of the Constitution under consideration, citizens or municipalities may be classified when the object of the Legislature is to confer upon them certain rights, privileges, immunities, or exemptions not enjoyed by the community at large. But this classification must not be mere arbitrary selection. It must have some basis which bears a natural and reasonable relation to the objects sought by the legislation, and there must be some good and valid reason why the particular municipality upon whom the benefit is conferred should be so preferred. Stratton v. Morris, 89 Tenn. 522, 15 S.W. 87, 12 L. R. A. 70; State v. Railroad, 124 Tenn. 1, 135 S.W. 773; Soon Hing v. Crowley, 113 U.S. 709, 5 S.Ct. 730, 28 L.Ed. 1145; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679.

It was determined at an early day in Humes v. Mayor and Aldermen, 1 Humph. 403, that a municipal corporation for the government of a town or city is the proprietor of the streets, which it holds as easements, in trust for the benefit of the corporation, and which it has the power to grade, pave or otherwise improve. "And it is well settled at this day," said the court, "both in England and America, that such a corporation is liable to be sued in actions of tort in like manner as natural persons." Memphis v. Lasser, 9 Humph. 757; Nashville v. Brown, 9 Heisk. 1, 24 Am. Rep. 289; Niblett v. Nashville, 12 Heisk. 684, 27 Am. Rep. 755.

In Knoxville v. Bell, 12 Lea, 157, the court reviewed the authorities in this state, and held that the doctrine was established that "municipal corporations are liable in civil actions for injuries to persons sustained by reason of their negligence or failure to keep their streets in safe condition for persons...