Reelfoot Lake Levee Dist. v. Dawson

• Decision Date: 30 June 1896
• Parties: REELFOOT LAKE LEVEE DIST. et al. v. DAWSON et al.
• Court: Tennessee Supreme Court

36 S.W. 1041

97 Tenn. 151

REELFOOT LAKE LEVEE DIST. et al. v. DAWSON et al.

Supreme Court of Tennessee.

June 30, 1896

Appeal from chancery court, Dyer county; John S. Cooper, Chancellor.

Suit by the Reelfoot Lake levee district and others against C. C Dawson and others. Bill dismissed, and complainants appeal. Affirmed.

Leech & Savage and M. A. Lowe, for appellants.

Deason & Rankin and M. M. Marshall, for appellee.

CALDWELL J.

In June, 1895, the legislature of the state, while in extraordinary session, by special act, created the Reelfoot Lake levee district, comprising certain territory in the counties of Lake, Obion, Dyer, and Lauderdale, "known as a part of Reelfoot Lake Basin of overflowed lands," and appointed two citizens of each of those counties as "a board of directors" therefor, to serve until the first Monday in March, 1898, and until the appointment and qualification of their successors; the said board to have power to "sue and be sued, plead and be impleaded, and have continual succession," for the purpose, and with the power and duty, of erecting and maintaining a levee sufficient to shield and protect the territory mentioned from recurring overflows by the waters of the Mississippi river. Acts 1895 (Ex. Sess.) c. 1, §§ 1-4. The fifth section of the act provides for the organization of the board; for an estimate by it of the amount of land within the district subject to overflow, of the length and height of the levee required for its protection, and of the probable cost of the same; and for a submission of the question of the necessary taxation to a vote of the people of the district. And the sixth section is as follows: "That for the purposes of building and maintaining the levee aforesaid, and for carrying into effect the objects and purposes of this act the board of levee directors shall have the power, and it is hereby made their duty, to assess and levy a contribution tax, not exceeding ten cents per acre, and two per cent valuation tax on all the land embraced within the said boundary of said levee district herein named; provided that the board of directors, through their president and secretary, shall notify the sheriffs of Dyer, Lake, Lauderdale and Obion counties to open and hold an election at the various voting places in the parts of the four (4) counties embraced within the area and bounded and described in the first section of this act; and it is hereby made the duty of the said sheriffs aforesaid, upon receiving such notice from the board of directors hereby created by this act, to open and hold said election in the usual manner prescribed by law for popular elections, after giving not less than ten days public notice at five (5) different public places in the overflowed district, of each county named, and at the time and places named by them; all the legal and qualified electors according to law, shall be entitled to vote at such election, and at such election the proposition shall be written or printed on the tickets so voted, 'For assessment,' or 'No assessment,' and the said sheriffs shall make returns of the said election to the secretary of the levee board, and also to the secretary of state, Nashville, Tennessee, and if it appear that three-fourths of those voting are in favor of the assessment, it shall then be the duty of said board of directors to levy said tax for that year, and annually thereafter, so long as it shall be found necessary to accomplish the objects of this act." Section 7 requires the board of directors to elect four citizens of the district-one from each county-to act as a board of tax assessors for the district; and section 8 requires the board of directors to elect from the citizens of the district four tax collectors, one in and for the included portion of each county. The twentieth section empowers the board of directors to issue and sell long-term, 6 per cent. bonds, from time to time, not to exceed $700,000 in all, "to raise funds to carry out the purposes" of the act; and the twenty-first section is as follows: "That for the purpose of providing for the payment of the interest on the bonds authorized by section 20, annually, and to provide a sinking fund for their ultimate redemption, it is hereby enacted that a tax per acre on all the lands embraced within the boundary described in section 1 of this act, (except the area now covered by standing water of Reelfoot lake, and the lands outside of the levee), sufficient in total amount to pay the interest on the bonds issued, shall be assessed and collected annually; provided, the said tax shall not exceed ten per cent. per acre; and provided further, that an assessment on the valuation of the lands, not exceding two (2) per cent., shall be assessed annually, and collected as provided for in sections 6, 7 and 8 of this act, and the same shall be paid over to the treasurer of said board, giving priority to the bonds of first date."

On the 14th day of November, 1895, the Reelfoot Lake levee district, by and through its board of directors, and jointly with certain other persons, landowners of Lake county, filed the present bill in the chancery court of Dyer county, against the sheriff, of the latter county and other citizens thereof, some of them being election officers, and others landowners and taxpayers in that part of Dyer county within the levee district. Complainants alleged, among other things, and in substance, that the board of directors provided for by the act was promptly organized, and that it entered upon its duties as therein directed; that it made all requisite estimates for construction and taxation, and thereupon submitted to the vote of the people of the district, in the manner prescribed in the sixth section, their recommendation of a present annual tax of 10 cents on the acre, and of 2 per cent. on the value, of all taxable lands within the levee district; that an election was held throughout the district, upon this recommendation, on the 10th day of September, 1895, and resulted, as shown by the returns sent to the secretary of the board, in a total of 732 votes "For assessment," and 632 votes for

"No assessment"; that 497 of the votes for "No assessment" were fraudulently cast in Dyer county by persons known not to be legally qualified to vote in that election; that, counting such fraudulent and illegal ballots, the proposed taxation was defeated, and, rejecting them, it was approved. And upon these allegations complainants prayed the court to purge the returns from specified precincts in that county, and eliminate therefrom the alleged illegal and fraudulent ballots, so that the true result might be declared, and its legitimate advantages enjoyed by the people of the levee district. The defendants, by demurrer, disputed the jurisdiction of the court, and also impeached the act in question, as being in violation of the state constitution in several particulars. Chancellor Cooper, hearing the cause upon these pleadings, sustained the demurrer so far as it assailed the act for violation of the revenue provisions of the constitution, but overruled it as to other questions. The act was adjudged unconstitutional, and the bill dismissed. Complainants have appealed, and the debate of learned counsel before this court, though embracing the whole demurrer, has been addressed chiefly to the grounds sustained by the chancellor; one side denying, and the other affirming, the correctness of the decree in respect thereto.

The power of taxation is an incident of sovereignty,-a prerogative, coeval with the government itself, and indispensable to its perpetuity. It is essentially a legislative power, and as such, in the general apportionment of governmental powers, falls to the legislative department, under section 3, art. 2, of the constitution, which vests "the legislative authority" of the state in the "general assembly." Marr v. Enloe, 1 Yerg. 454; Keesee v. Board, 6 Cold. 130; Waterhouse v. Board, 8 Heisk. 859; City of Memphis v. Union & Planters' Bank, 91 Tenn. 550, 19 S.W. 758; Cooley, Tax'n (2d Ed.) pp. 4, 41; Burroughs, Tax'n, § 6; 25 Am. & Eng. Enc. Law, 18. In respect to taxation, therefore, as to all other subjects of legislation, the general assembly has full power to pass any law not in conflict with the delegated powers of the federal government, or with the restrictions of the state constitution; and he who would show the unconstitutionality of tax legislation, as of other legislation, must be able to put his finger on the provision of the constitution, federal or state, violated thereby. Bell v. Bank, Peck, 269; Hope v. Deaderick, 8 Humph. 8; Demoville v. Davidson Co., 87 Tenn. 220, 10 S.W. 353; Stratton Claimants v. Morris Claimants, 89 Tenn. 511, 15 S.W. 87. Confessedly, the act before us does not violate any provision of the federal constitution. The restrictions of the state constitution on the subject of taxation are found in sections 28 and 29 of article 2 of the constitution of 1870. Such parts of those sections as it is desirable now to quote are in the following language, namely:

"Sec. 28. All property, real, personal or mixed, shall be taxed, but the legislature may except such as may be held by the state, by counties, cities or towns, and used exclusively for public or corporation purposes, and such as may be held and used for purposes purely religious, charitable, scientific, literary or educational, and shall except one thousand dollars' worth of personal property in the hands of each taxpayer, and the direct product of the soil in the hands of the producer or his immediate vendee. All property shall be taxed according to its value, that value to be ascertained in such manner as the legislature shall direct, so that the taxes shall be equal and uniform throughout the state.

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