Smith v. Mayor, Etc., of Nashville

• Decision Date: 01 February 1890
• Citation: 12 S.W. 924
• Parties: SMITH, County Clerk, <I>v.</I> MAYOR, ETC., OF NASHVILLE.
• Court: Tennessee Supreme Court

12 S.W. 924

SMITH, County Clerk,

v. MAYOR, ETC., OF NASHVILLE.

Supreme Court of Tennessee.

February 1, 1890.

Appeal in error from circuit court, Davidson county; W. K. McALISTER, JR., Judge.

Ed. M. Woodall, for appellant. Lytton Taylor, for appellee.

CALDWELL, J.

This record raises the question of the liability of the city of Nashville for a privilege tax on the water-works, under the revenue act of 1887. The case was before the court on petition for certiorari and supersedeas at the December term, 1887, and the opinion there delivered is reported in 2 Pickle, beginning at page 214, 6 S. W. Rep. 273. The petition alleged the construction and maintenance of the water-works by the city in its corporate capacity, for the public good, and not as a private enterprise for pecuniary gain or profit, and this court held that, in the absence of express statutory provision on the subject, the exemption from taxation arose by implication of law from the public ownership, nature, and use of the property, as revealed by the allegations of the petition. It was further decided, however, that the city could not in that mode question its liability for that part of the tax assessed in favor of the state; but that its remedy was to pay the same under protest, and sue to recover the amount in 30 days, as provided by the act of 1873. Hence, so far as the state was concerned, the petition was dismissed. As to the county it was retained, and remanded for further proceedings. Subsequently, the amount claimed for the state was paid under protest, and suit to recover the same was brought in due time. This new suit and what remained of the former one were then consolidated by mutual agreement, and heard together before the Honorable W. K. McALISTER, circuit judge, without the intervention of a jury. Judgment was for the city, and there is an appeal in error on behalf of the state and county.

The correctness of the decision heretofore made by this court on the allegations of the petition is conceded, but counsel for the state and county say that the proof on the trial refutes those allegations, and shows that the water-works were used for pecuniary gain and profit, and not exclusively for the public good. P. J. Flanigan, comptroller of the city, was the only witness introduced. We give the material part of his evidence in his own words, as found in the bill of exceptions. He said: "That said city always owned and operated the water-works, * * * and it was maintained by levying a tax upon persons in said city who used the water supplied. That the water was used for extinguishing fire, sprinkling streets, and the use and benefit of citizens in said city. That there were several factories adjacent to said city, but beyond its corporate limits, and several thickly-settled places in close proximity to said city, which from time to time were annexed to said city. That the factories laid their own pipe, connecting with the city's water-mains, and, in case of emergencies, when their private water supplies were exhausted, they used water furnished by the city; but this was only occasionally. The main reasons why connections were made was to provide for an abundant supply of water in case of fire. That in all there were about $6,000.00 paid by factories and persons living adjacent to the corporate limits. That this * * * was not the real source from which the revenue was derived. That about $85,000.00 annually were derived, [from all sales of water,] $50,000.00 of which went to pay the operating expenses, and the remainder to pay the interest on about $1,000,000.00 invested by said city in the water-works improvement, and that the remainder was not sufficient, and that there was a deficit annually which was made up from other sources. * * * That the fire companies responded to alarms when given, if adjacent to the city, and used water furnished by the city in extinguishing them, and had frequently responded to alarms sent in from factories beyond the corporate limits."

It is seen at once that the water-works are corporate property. That is not denied. The debate is with respect to the nature of the use. As to that, for the sake of convenience, we divide all the purposes for which the city furnishes water into three classes: (1) To extinguishing fires and sprinkling the streets; (2) to supply citizens of the city; (3) to supplying persons and factories adjacent to but beyond the corporate limits. If the business were confined to the first class, there would be no ground to base a decision on, so clearly would the use be exclusively for public advantage. We think there can be but little more doubt about the second class, especially in view of certain words in the city charter, to which we will advert presently. Nothing should be of greater concern to a municipal corporation than the preservation of the good health of the inhabitants. Nothing can be more conducive to that end than a regular and sufficient supply of wholesome water, which common observation teaches all can be furnished in populous cities only through the instrumentalities of well-equipped water-works. Hence, for a city to meet such a demand is to perform a public act, and confer a public blessing. It is not strictly a governmental or municipal function, which every municipality is under legal obligations to assume and perform, but it is very closely akin to it, and should always be recognized as within the scope of its authority, unless excluded by some positive law If the responsibility be voluntarily...