Nashville, C. & St. L. Ry. v. Marshall County

• Decision Date: 19 July 1930
• Citation: 30 S.W.2d 268,161 Tenn. 236
• Parties: NASHVILLE, C. & ST. L. RY. v. MARSHALL COUNTY et al.
• Court: Tennessee Supreme Court

30 S.W.2d 268

161 Tenn. 236

NASHVILLE, C. & ST. L. RY. v. MARSHALL COUNTY et al.

Supreme Court of Tennessee.

July 19, 1930

Appeal from Chancery Court, Marshall County; Thos. B. Lytle, Judge.

Bill by Nashville, Chattanooga & St. Louis Railway against Marshall County and others. From a judgment dismissing the bill complainant appeals.

Affirmed.

R. C Armstrong, of Lewisburg, and Fitzgerald Hall and Frank Slemons, both of Nashville, for appellant.

T. L Coleman, and W. P. McClure, both of Lewisburg, and R. E. Maiden, of Dresden, for appellees.

CHAMBLISS J.

The bill was filed to enjoin a levy of a tax for general county purposes by the county court of Marshall in excess of the 20 cent maximum authorized by the General Revenue Act of 1927 (Pub. Acts 1927, c. 89). The constitutionality of chapter 873, Private Acts of 1929, which authorized Marshall county, designated by population, to levy a tax for general county purposes up to a maximum of 35 cents, is attacked as special legislation affecting this county only, inconsistent with the general law applicable to all counties of the state, and in violation of section 8, art. 11, section 8, art. 1, sections 28 and 29, art. 2, of the state Constitution and Amendment 14 of the federal Constitution. The chancellor overruled these objections to the private act of 1929 and dismissed the bill. Complainants have appealed, assigning errors based on the grounds stated.

Appellants emphasize, first, the historically indicated legislative policy of the state of uniformity in conferring a maximum authority upon the counties to levy taxes for general county purposes. However this may be, it must be conceded that the legislative power is not cut off by the adoption or following of any given policy in legislation. Every new General Assembly is a law unto itself, within constitutional limitations only. This showing of legislative policy would seem to be pertinent only in construction of any ambiguity in the act of 1929, under attack, and no ambiguity exists. The act, clearly captioned, expressly authorizes the quarterly county court to levy and collect an annual tax for general county purposes not to exceed 35 cents on each $100 of taxable property in the county, and further provides that "this authority shall exist in the Quarterly County Court regardless of the amount of such taxes authorized to be levied and collected by the general revenue law of the State, or otherwise." (Section 2) The purpose of the Legislature could hardly be made plainer, including expressly the intent to take the county affected out from under the application of the general revenue law. May this be constitutionally done?

We do not conceive it to be controverted that by special legislation (1) counties may be empowered to make levies of taxes for special purposes, and (2) municipal corporations of towns and cities may be empowered to make levies of taxes for special, or general, purposes; that as to all such the constitutional requirements of uniformity, either in classification or taxation, do not apply.

The logic of the argument offered to distinguish the power of the Legislature to authorize by special act a county to levy a tax in a particular amount for general purposes, from the power to authorize by such legislation levies for specially designated purposes, does not clearly appear; nor does it appear how, in this regard, the conceded power of the Legislature to so deal specially and particularly with municipal corporations generally is to be distinguished from its power to so deal with counties, long legally recognized, both by statute (section 402 of the code [1858]) and our decisions, as of a municipal character. "The county is idealized as a corporate body, represented by the justices, who occupy the relation of directors, exercising powers regulated by law. State v. Anderson [County] 8 Baxt. 255; Grant v. Lindsay, 11 Heisk. 666. Through the county court thus constituted the county, in its municipal character as a corporation, acts and is acted upon." State ex rel. v. Read, 152 Tenn. 442, 278 S.W. 71, 72. "'A county, under our law, is a corporation; the citizens are the corporators; the county court, the agency through which this mortal immortal acts and speaks and has its being.' *** The county is also a municipal body, and as such is an arm or instrument of the state, to carry out purposes of government." Redistricting Cases, 111 Tenn. at page 255, 80 S.W. 750, 753.

In the first place, the mere designation of the specific direction which a fund raised by the tax authorized to be imposed is to take does not appear to distinguish it fundamentally, in respect to the constitutional power to legislate specially, from the authority to levy the tax for general purposes without specific designation. Both to the same extent violate the principle here sought to be applied of uniformity as among the counties of the state. Both confer powers to tax on a given county not conferred on all others.

And, in the second place, the principle is as applicable to counties as to municipalities. Both are arms of the state, alike governmental agencies on which the state may confer governmental functions, to such extent and with such restrictions as may seem to the Legislature demanded by their several corporate needs.

Touching the power of the Legislature to enact special laws affecting municipal corporations, in Furnace v. Railroad, 113 Tenn. at page 722, 87 S.W. 1016, 1022, it was said:

"Since the case of State v. Wilson, 12 Lea, 246, it has been the settled law of this state that special legislation as to municipal corporations is not within the inhibition of article 11, § 8, of the Constitution of 1870. Since the opinion in that case (its conclusion being reaffirmed in Ballentine v. Pulaski, 15 Lea, 636), many acts of the Legislature dealing with particular municipal corporations have been passed, some of which have been before this court, and the authority of these two cases has been uniformly recognized"--citing Williams v. Nashville, 89 Tenn. 487, 15 S.W. 364, and other cases.

In Quinn v. Hester, 135 Tenn. 374, 186 S.W. 459, 460, in which the validity of a private act was challenged as in violation of section 8, art. 11, of the Constitution, in that its provisions were inconsistent with the General School Law, after observing that this section has no application to special legislation for municipal corporations, the court proceeded:

"This school district is not a municipal corporation under our cases in the sense that it can be authorized to impose taxes. As said of the levee district, however, in Reelfoot Lake Levee District v. Dawson [97 Tenn. 151, 36 S.W. 1041, 34 L. R. A. 725], supra, it is clearly not a private corporation. *** It is, as said of the county in State ex rel. v. Cummings, 130 Tenn. 566, 172 S.W. 290, L. R. A. 1915D, 274, 'but an emanation from the state.'

Like a municipal corporation, this school district is a mere arm or instrumentality of the government 'created exclusively for public purposes, subject to the unlimited control of the Legislature.' State v. Wilson, supra.

We think the reasoning of all the cases upholding special legislation respecting towns, cities, and counties is equally applicable in support of the special legislation with respect to this school district, and, applying said reasoning to the case before us we are convinced that the statute in question does not contravene section 8, art. 11, of the Constitution."

In Lauderdale County v. Fargason, 75 Tenn. (7 Lea) 153, wherein a special act, applicable to certain counties only, was challenged because inconsistent with a previously passed general statute on the same subject, the special act was sustained as within the power of the Legislature. The court said:

"To recur for a moment to the language of the Constitution giving the authority to tax themselves, by the action of the Legislature, to counties and corporations, we think its terms indicate definitely that such power might be conferred in any particular case on any one or more counties. It is: 'The several counties and incorporated towns in this State.' The word several is defined by Mr. Webster--'Each particular, or a small number, singly taken.' This being so, the plain meaning of the words would be, that each particular county, or a small number, or any number of the counties, singly taken, may be so authorized. If the power to tax in any particular case may be conferred on a smaller number than the whole number in the State, or on one, there can certainly be no reason why the power to incur an obligation for which the tax became necessary, should be required to be given by a law more general than the one that authorized the taxation to meet the obligation thus incurred."

That portion of appellant's exhaustive brief which is devoted to an attack on the use of the population basis of classification as arbitrary is hardly in point. This legislation is not sought to be, and could not be, so justified. It must be dealt with as though the county had been named. In order to stand it must be tested by the rules applicable to that class of cases in which the agency of the state has been definitely designated and...