Keesee v. Civil Dist. Bd. of Educ.

• Decision Date: 31 December 1868
• Citation: 46 Tenn. 127
• Parties: B. O. Keesee et als. v. The Civil District Board of Education et als.
• Court: Tennessee Supreme Court

46 Tenn. 127

B. O. Keesee et als.

v.The Civil District Board of Education et als.

Supreme Court of Tennessee.

December Term, 1868.

FROM MONTGOMERY.

This cause was heard by Chancellor J. F. LAUCK, at Chambers, who dissolved the injunction, and allowed respondents to proceed to collect the school tax; complainants filed the records in open court; and asked for a supersedeas from this Court.

JAMES E. BAILEY & WM. A. QUARLES, for Complainants.

W. F. POEFFER and J. JAY BUCK, for Respondents.

HENRY G. SMITH, J., delivered the opinion of the Court.

At the instance of the complainants, a provisional injunction was granted in this case by the Chancellor, restraining the collection of the tax set forth in the bill. Upon the coming in of the answer, another Chancellor at Chambers, on the application of the defendants, ordered the injunction to be dissolved. And now the complainants come and ask this court, in exercise of the power conferred by sec. 3933 of the Code, to supersede the Chancellor's order of dissolution.

To understand the question which has been discussed, and the action of this court in the premises, the facts material to be stated, are these:

The civil district Board of Education, of the 12th civil district of Montgomery County, by virtue of and in conformity with the 14th section of the 83 chap. of the Act of the General Assembly of Tennessee, enacted March 14th, 1868, assessed upon the taxable properties within the civil district, a tax of three mills upon the dollar, and fifty cents upon each poll, for the purpose of raising $5,700, to be applied to the buildings, etc., of school houses, for the use of the children of the civil district.

The tax collector was proceeding to enforce the collection of the tax; whereupon, the complainants, who are tax payers of the district, exhibited this bill against the Board of Education, and the several members of it, and the tax collector of the county, and praying a provisional and perpetual injunction.

The complainants allege the 14th section of the Act, and the tax assessed pursuant to it, to be unconstitutional and void. And this is the question.

The 14th section of the Act of 1868, is as follows:--

“Section 14. Be it further enacted, That the sub-district directors, or the civil district directors, acting as sub-district directors, or in behalf of graded schools, as provided by law, are hereby authorized and empowered, as such, to assess such a tax on property and polls, as shall be necessary to pay teachers, or meet the incidental expenses of causing to be taught, the necessary schools as now required by law, five consecutive months each year; and should any further tax be then deemed necessary for the purpose of building, repairing or furnishing school houses, they shall estimate said amount, not to exceed three mills on a dollar, or fifty cents on each poll, and submit the question of assessment to the legal voters of the district, first having posted notices of the same in three of the most public places in the district, previous to said election; and if the majority of the legal voters of the district present at said meeting, shall vote for the assessment, it shall be assessed. In each case, the tax assessed shall be entered on a tax duplicate, by the County Court Clerk and collected by the tax collector, as provided by law in the case of other local taxes; and shall be disbursed by the Count Superintendent, on the proper orders of said board, as already provided by law.”

The courts owe great respect to the legislative department of the government, and ought not to declare void. a statute which has received the sanction of the legislature, unless it be clear that the statute is in conflict with the constitutional law. If such conflict clearly appear, the duty to so declare, can not be properly omitted

The question proposed, is not open in Tennessee. It was closed by the judgment of the Supreme Court, in 1830, and soon after, again, by Convention of 1834, which framed the present Constitution.

The Constitution, by sec. 3, of article 2, ordains, that, “The legislative authority of the State, shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both dependent on the people.”

In the case of Marr vs. Enloe, decided in 1830, and reported in 1 Yerger's Reports, 452, the question came before the Supreme Court; and it was there held, that the power of taxation is in its nature, legislative; and is incapable of delegation. So essentially legislative is the power held to be, that it can no more be delegated, than can be delegated the power to enact statutory laws.

This decision was made upon the Act of 1827, ch. 49, sec. 1, which enacts, “That the Court of Pleas and Quarter Sessions, in the several counties in this State, a majority of twenty-five of the acting justices being present, shall at the first court in each and every year, levy a tax to meet the current expenses of their county for the ensuing year, upon all polls and property subject to taxation.”

Upon the bench of the Supreme Court, when this decision was made, were Robert Whyte, Catron and Greene. The mention of their names, carries with it great authority. It may be said, with a truth which...