Mayor & City Council of Nashville v. Althrop

• Citation: 45 Tenn. 554
• Parties: Mayor and City Council of Nashville v. Thomas Althrop.
• Decision Date: 31 December 1868
• Court: Supreme Court of Tennessee

45 Tenn. 554

Mayor and City Council of Nashville

v.Thomas Althrop.

Supreme Court of Tennessee.

December Term, 1868.

FROM DAVIDSON.

This case originated before the Recorder of the City of Nashville, who rendered a judgment against Althrop, who appealed to the Circuit Court. At the September Term, 1867, it was submitted to the Court upon an agreed state of facts. The Court dismissed the case, and the Mayor and City Council appealed. Judge M. M. BRIEN, presiding.

JOHN LELLYETT and D. W. PEABODY, for Plaintiff in Error.

R. MCPHAIL SMITH, for Defendant in Error.

GEORGE ANDREWS, J., delivered the opinion of the Court.

This is an appeal by the plaintiff from the judgment of the Circuit Court of Davidson County, dismissing a proceeding taken against the defendant Althrop, for an alleged violation of an ordinance of the City of Nashville. The ordinance in question is as follows:

“Section 1. Be it enacted by the City Council of Nashville: That the business of selling goods by sample in this city shall be considered a separate avocation; and any person pursuing the same, shall first obtain from the City Recorder, a license, for which he shall pay the sum of three hundred dollars per annum, and usual fees; and said dealer shall, in addition, give bond in the sum of five thousand dollars, with two securities resident in the County of Davidson, that he will, at the end of each month, or less, render a sworn statement of the amount of his sales within the city during said month; and for the payment to the Recorder for the use of the city, of a tax of one per cent. upon all such sales.

Sec. 2. That all merchants of other cities, and their agents, and all other non-residents of the city, whether manufacturers, merchants, or other dealers, who may offer goods for sale in this city, whether it be by sample or representation, or the taking of orders for goods to be shipped or hauled to this city, shall be required to take out license, and give bond as provided for in the first section of this Act: Provided, That this Act shall not be so construed as to interfere with, or impose any additional tax upon the sale of agricultural products by farmers and marketers, or any additional tax or disability upon merchants of this city.

Sec. 3. That any parties violating any of the provisions of this Act, shall, upon conviction, be subject to a fine of fifty dollars for each offense; and that all laws and parts of laws conflicting with this Act, are hereby repealed.”

The defendant Althrop was arrested for a violation of the above ordinance; and on trial before the Recorder of Nashville was fined fifty dollars, and the costs in each of two separate cases. From these judgments he appealed to the Circuit Court of Davidson County, where the causes were submitted to the Court upon an agreed statement of facts, of which the following is a copy:

“Defendant is the agent of a New York firm, dealers in varnish, etc. He came to Nashville about the time of his arrest--a day or so before--with samples of varnish and a list of prices. His errand here was to exhibit his samples to parties, and to procure from them orders for varnish, etc. He did so exhibit his samples and list of prices and did procure orders in two cases, from Nashville parties, for the articles in which his firm dealt. It is also admitted that the defendant had no license.”

Upon this state of facts the Circuit Court dismissed the cause and discharged the defendant; and from this judgment, the Mayor and City Council appealed to this Court.

Various objections are urged to this proceeding against the defendant; but we shall confine our discussion and decision to the question as to the validity of the above ordinance, under our Constitution, and the power and authority granted to the Common Council of the City of Nashville.

The Constitution of this State provides, Art. 2, sec. 28: “No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value. But the Legislature shall have power to tax merchants, peddlers and privileges in such manner as they may, from time to time direct.”

“Sec. 29....