Memphis Union Station Co. v. City of Memphis

• Decision Date: 19 July 1930
• Citation: Memphis Union Station Co. v. City of Memphis, 30 S.W.2d 240, 161 Tenn. 203 (Tenn. 1930)
• Parties: MEMPHIS UNION STATION CO. v. CITY OF MEMPHIS.
• Court: Tennessee Supreme Court

30 S.W.2d 240

161 Tenn. 203

MEMPHIS UNION STATION CO. v. CITY OF MEMPHIS.

Supreme Court of Tennessee.

July 19, 1930

Appeal from Chancery Court, Shelby County; D. W. De Haven Chancellor.

Suit by the Memphis Union Station Company against the City of Memphis. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Canada Williams & Russell, of Memphis, for complainant.

Walter Chandler and A. L. Heiskell, both of Memphis, for defendant.

COOK J.

The bill was filed to recover taxes alleged to have been illegally exacted by the city. Complainant's right to recover is dependent upon whether the power given the city to collect the tax under chapter 408, Private Acts of 1915, was withdrawn by subsequent legislative enactment.

Chapter 408 of the Private Acts of 1915 is an amendment to the charter of the city of Memphis. Section 1 imposed a privilege tax for use of the city upon each of 148 enumerated occupations, among them railroad terminal companies, taxed at $750 annually. Section 2 authorized the city to assess other taxable privileges not enumerated in the act, and section 7 contains provisions as follows:

"In the absence of any ordinance upon the part of the City of Memphis, the privilege tax as herein specified and set out shall apply.

*** And the fixing of a privilege tax by legislative act for the State and County shall not abrogate any taxes herein fixed, unless this Act shall be specifically repealed."

Section 8 provides:

"The City of Memphis shall have the right to by ordinance fix privilege taxes at an amount less than there is herein set out, but no city ordinance shall be necessary to assess a tax equal to that levied for all State purposes and not herein mentioned and set out, but in default of an ordinance the amount levied by the State shall be the privilege tax of said City."

Through the demurrer of the defendant and the assignments of error to the action of the chancellor sustaining the demurrer, the question is presented of whether or not the power conferred upon the city by chapter 408, Private Acts of 1915, was revoked by the general revenue law, chapter 75, Public Acts 1923. Section 4 of this act includes numerous occupations taxed as privileges with no restriction upon the right of counties and municipalities. From section 4 the Legislature omitted express companies, sleeping car companies, news companies, telephone companies, telegraph companies, and railroad terminal companies, which are grouped in section 5 immediately following the declaration:

"That engaging in the various kinds of business mentioned in this section is hereby declared to be a privilege for State purposes alone, and person, firm or corporation so engaged shall pay to the State Comptroller the tax hereinafter stated; and no county or municipality may impose any tax upon the privileges mentioned in this section."

It is shown by the bill that complainant, following a custom of previous years, and without advice of counsel, paid by mistake the privilege tax of $750 to the city for the years 1924 to 1928, inclusive, aggregating $3,750, and it is charged that the tax for these years was illegally collected, for which the city is liable and under particular provisions of its charter should be required to refund.

No question of voluntary payment working estoppel against complainant's right to recover is involved. That defense was not made.

It is conceded by the city that its right to retain the money is dependent upon whether the act of 1923 operated to repeal so much of chapter 408, Private Acts of 1915, as imposed a tax of $750 annually upon terminal companies for the benefit of the city.

In support of its right to collect the tax, the city relies upon the rule of construction that a general law does not by implication repeal a special act, upon certain provisions of chapter 408, Private Acts of 1915, and the Revenue Act of 1923.

The effect to be given to the two acts, and any particular provision of either, is dependent upon the intention of the legislation to be discovered by reference to the words of the act and their context.

The provision of the 1923 Revenue Act, referred to and relied upon by the city, is as follows:

"The imposition of a privilege tax under this Act shall not be construed as a release or exemption from an ad valorem tax, nor shall this Act be construed as repealing any special Act heretofore passed, imposing a privilege tax." Section 2.

This provision, quoted from section 2 of the Revenue Act of 1923, appears in the Revenue Act of 1915 (chapter 101), 1909 (chapter 479) 1907 (chapter 541), and 1899 (chapter 432). It referred to statutes levying special privilege taxes for state and general purposes such as are mentioned and discussed in Camden Fire Ins. Co. v. Haston, 153 Tenn. 675, 284 S.W. 905. Occurring in Revenue Acts that antedate the act of 1915, the provision cannot be particularly related to chapter 408, Private Acts of 1915.

The General Revenue Act of 1915 (Pub. Acts 1915, c. 101), taxing occupations for general purposes, and by general purposes we mean for the use of the state and its agencies, the counties and municipalities, and the Private Act of 1915 (chapter 408) amending the charter of the city of Memphis so as to fix municipal taxes upon the privileges enumerated, were passed and approved on the same day. In the General Revenue Act of 1915 the Legislature grouped certain occupations under section 5, declared the tax upon them to be for the exclusive benefit of the state, and that the tax should be paid directly to the state comptroller. Though, among the occupations grouped under section 5 of the Revenue Act of 1915, railroad terminal companies were left open to county and municipal taxation, they are among those enumerated and taxed in chapter 408, Private Acts of 1915, on behalf of the city. Telegraph companies, telephone companies, railroad companies, sleeping car companies, and express companies omitted from chapter 408, Private Acts of 1915, are expressly...