Ogilvie v. Hailey

• Decision Date: 29 March 1919
• Parties: OGILVIE ET AL. v. HAILEY, CLERK, ET AL.
• Court: Tennessee Supreme Court

210 S.W. 645

141 Tenn. 392

OGILVIE ET AL. v. HAILEY, CLERK, ET AL.

Supreme Court of Tennessee.

March 29, 1919

Appeal from Chancery Court, Davidson County; Jas. B. Newman Chancellor.

Bill by J. A. Ogilvie and others against Romans Hailey, Clerk, and others. From a decree in favor of defendants, the complainants appeal. Affirmed.

Roscoe Bond, Wm. Fuqua, and Lurton Goodpasture, all of Nashville for appellants.

T. J McMorrough, of Nashville, for appellees.

LANSDEN C.J.

The bill in this cause was filed to enjoin the collection of a privilege tax on automobiles used for pleasure, applicable to Davidson county. It is averred that the statute authorizing this tax is unconstitutional. A demurrer was interposed, which was sustained by the chancellor, and the complainants have appealed to this court.

Some criticism is made of the form of the demurrer. It is insisted that it is too broad in its terms to be considered. Where a bill is bottomed on the unconstitutionality of a statute, it is the duty of the complainant to point out and state with particularity the details of the supposed conflict of the statute with the organic law. In such a case a demurrer which challenges generally the legal conclusions of the bill is sufficient. Every intendment is in favor of the statute and against the attack, and the complainant must lay his grounds of attack with the precision ordinarily required of a demurrant.

The statute involved is chapter 407 of the Private Acts of 1915, entitled:

"An act to provide revenue by assessing a privilege tax in counties having a population of from 149,000 to 190,000 inhabitants by the federal census of 1910, or any subsequent federal census, on automobiles and motorcycles used for pleasure, to oil the turnpike roads of said county which are under the supervision of the turnpike board."

Section 1 of the act provides that a privilege tax shall be collected in the counties named, by the county court clerk, on all automobiles and motorcycles used for pleasure, of $7.50 on seven-passenger automobiles, $5 on five-passenger automobiles, $3 on two-passenger automobiles, and $2 on motorcycles, and it is provided that said tax is to be paid annually to the county court clerk, as other privilege taxes.

Section 2 provides that the owners of such vehicles shall pay said privilege tax in advance, and that any violation of the act subjects them to payment of a penalty of $25, and that said tax and penalty shall be a lien on said machines.

Section 3 provides that it shall be the duty of the county court clerk to turn over to the county trustee all collections under this statute, to be placed by the trustee "to the credit of account for oiling turnpikes in said counties."

The foregoing act, as stated, was passed by the Legislature of 1915. Prior to this was chapter 141 of the Acts of 1907, creating a turnpike board for Davidson county. Omitting reference to other Davidson county road laws, by chapter 441 of the Private Acts of 1917, a board of highway commissioners was created for Davidson county, which was given charge of all the highways of the county, both turnpikes and roads, and it was provided in the act of 1917 (section 15) that--

"All funds assessed for pike and district road purposes shall be collected by the county trustee, as now provided by law and shall be paid out on the warrants of the county judge on orders signed by the superintendent of road, and countersigned by at least two members of the board of highway commissioners."

The bill herein was filed July 19, 1917, after the aforesaid act of 1917 was passed. Therefore, at the time this suit was brought, there was in force chapter 407 of the Private Acts of 1915, herein attacked, and chapter 441 of the Private Acts of 1917, creating the board of highway commissioners, and conferring upon such board jurisdiction of the turnpike roads of Davidson county.

So far as these complainants are concerned, these two acts must be construed together, in pari materia, as part of the same scheme of legislation. This latter observation removes some of the objections urged to the act of 1915 by the complainants herein, and by Mr. Shannon in the Annotations in his new Code. For the purpose of this suit, both these statutes may be treated as one.

It is first insisted that the taxation of automobiles used for pleasure and failure to tax automobiles used for business is an arbitrary and...