83 Tenn. 633 | Tenn. | 1885
delivered the opinion of the court.
The chancellor dismissed this bill on demurrer and the complainants appealed. The bill was filed for the purpose of enjoining the collection of taxes under an ordinance of the corporate authorities of the town of Pulaski establishing, by virtue of a recent act of the Legislature, a system of free schools for the children of the town. The complainants are partly citizens of the town paying taxes, and partly owners of property in the corporation subject to the proposed taxation.
The first point to be noticed, for it involves the merits of the legislation, is the constitutionality of the act of 1885, amending the charter of the town of
The Legislature, by the act of 1872, ch. 12, (new Code, secs. 1652, 1657), authorized all municipal corporations to establish a system of public schools and levy a tax in support thereof, upon the consent of two-thirds of the qualified voters of the municipality given at an election held for the purpose. It is now insisted that the amendatory act of 1885 repeals the act of 1872 by “necessary implication/’ and is, therefore, void, because it violates the Constitution, Art. 2, sec. 17, by falling to refer to the act repealed. But if the fact were as claimed, we have settled that the section of the Constitution referred to has no application to statutes which repeal by implication: Home Insurance Company v. Taxing District, 4 Lea, 644; State v. Gaines, 4 Lea, 353; Maney v. State, 6 Lea, 218, 221 ; Knoxville v. Lewis, 12 Lea, 181. The act •of 1872 is not, however, repealed by the act of 1885. It is still in full force, and if the corporate authorities of Pulaski had not determined to proceed under
It is suggested in the bill and in argument that so long as the act of 1872 is allowed to remain in force, the power of the Legislature on the subject was •exhausted. But if this means anything more than what is contended for in the preceding argument, that there must be a constitutional repeal, we are unable to see its force. The power of the General Assembly of the State over all matters of legislation is never exhausted. The only question in any particular case is, has it been constitutionally exercised?
The Constitution, Art. 2, sec. 29, provides: “The General Assembly shall have power to authorize the several counties and incorporated towns in this State to impose taxes for county and corporation purposes respectively, in such manner as shall be prescribed by law.” The courts of this State have always held, that taxation is a purely legislative power, which can not be delegated except as authorized by the Constitution. Marr v. Enloe, 1 Yer., 454; Keesee v. District Board, 6 Cold., 127; Waterhouse v. Board, etc., 8 Heis., 857; Lipscomb v. Dean, 1 Lea, 546. It is conceded, therefore, that the Legislature. can only authorize counties and incorporated towns in this. State to impose taxes “ for county and corporation purposes.” And the point is made by the complainants that to establish and provide for a "system of free public schools, is not a corporation purpose. It is a little curious that such a point should be made at this time, when a system of free public schools has
“It may be safely declared,” says Judge Cooley, “ that to bring a sound education within the reach of all the inhabitants has been a prime object of American government from the very first. It was declared by colonial legislation, and has been reiterated in constitutional provisions to the present day. It has been regarded as the imperative duty of the government ; and when question has been made concerning it, the question has related, not to the existence of the duty, but to its extent. But the question of extent is one of public policy, and addresses itself to the Legislature and the people, not to the courts. And the tendency on the part of the people has been steadily in the direction of taking upon themselves
The Constitution of this State, adopted in 1834, as well as the Constitution of 1870, contained the following provision, being section 12, Art. xi., of both Constitutions: ‘'Knowledge, learning and virtue being essential to the preservation of republican institutions, and the diffusion of the opportunities and advantages of education throughout the different portions of the State,, being highly conducive to the promotion of this end, it shall be the duty of the General Assembly, in all future periods of this government, to cherish literature and science. And the fund called the common school fund, and all the lands and proceeds thereof, dividends,.
The language of this section, both in the earlier and later Constitution, plainly shows the intent' of the people that the education of the children through a system of common schools should be a State purpose. And the existence of a common school fund at the time of the adoption of the Constitution of 1834, also ■clearly shows that the Legislature, without any positive constitutional direction, bad always considered education, to use the language of Judge Cooley, “a prime object of American government.” As soon as the growth of our cities, and the increasing prosperity of the ■State would justify it, the Legislature began to confer ■upon the counties and incorporated towns the power
The doubt of Judge McFarland, above referred to, was whether a county or corporation purpose would not, within the meaning of the Constitution as to delegated taxation, indicate a purpose peculiar to the county or incorporated town, not a purpose common to State, county and town. But, as we have seen, the powers conferred upon its arms or agents are usually powers which appertain to the State. Aud we have a striking instance in the new Code, section 2371, et seq., of the same purpose, being a purpose of State, county and town, to be performed by each at its own expense. The State has a general board of ■ health to prevent the spread of disease; every municipal corporation of a certain population, shall also have a board of health; and each county is required, at its own expense, to take measures to prevent the spread of disease. The purpose may, therefore, be a State, county and municipal purpose,
Something is said, both in the bill and in the argument in support thereof, about the act of 1885 violating the Constitution, Article I, section 8, which provides, among other things, that no man shall be deprived of his property but by the law of the land; and section 21 of the same article, that no man’s property shall be taken or applied to public use, “without the consent of his representatives,” or just compensation. But if the establishment and support of a system of public schools is a corporation purpose, and the act "of 1885 was constitutionally enacted by the Legislature, and the ordinance based thereon was properly passed by the municipal authorities, then the property of the complainants taken in the way of taxes to support the system would be taken by the law of the land, and with the consent of their representatives, first in the Legislature and again in the city council.
The act of 1885 authorizes the levy by the corporation authorities for school purposes to be made upon “all taxable polls,” as well as property and privileges, and the ordinance of the corporation levies the tax accordingly. The bill alleges as a fact, which the demurrer admits, that the corporate authorities had also imposed a tax of one dollar on each poll for-ordinary corporation purposes. Some of the complainants, as we have seen, are liable to the payment of these poll taxes. And they insist that the additional poll tax for school purposes is violative of the Constitution, Article II, section 28. That section, after providing for a State poll tax “ of not less than fifty cents nor more than one dollar jDer annum,” adds: “Nor shall any county or corporation levy a poll tax exceeding the amount levied by the State.” The argument of the complainants is that municipal corporations are limited to taxation on polls not exceeding in any one year the State tax for that year. The
The learned and able counsel of complainants make another point on the act of 1885, and insist that section 4 thereof is unconstitutional, and thereby vitiates, as they contend, the whole act. The section mentioned is in these. words: “ The board of education may permit children living outside of the corporate limits of said town to attend said schools provided for in this bill, by requiring such children, their parents or guardians, to pay tuition to said board of education, the rates and terms of tuition to be fixed by said board, and the money so realized shall go into the school fund of the town; and when any such person living outside of said corporation shall attend, or send to said school, and shall own property in the corporation limits of said town, and shall pay a school tax on the same to said corporation, the board of education may allow credit on the tuition account of such person to the extent of the school tax paid by such person to the corporation the same year that such person shall attend, or send his child, children or ward to said school; but no
Very earnest- and able arguments have been submitted by the learned counsel of the complainants upon the policy of the State, county and incorporated towns being all allowed to tax ' the citizen for school purposes, thus subjecting him to be thrice taxed for the benefit of education. It has been earnestly insisted
Under the rule of decision adopted by this court when a case comes up on demurrer, and repeatedly acted upon (1 Lea, 468; ■ 4 Lea, 249; 6 Lea, 65; IS Lea, 599), the chancellor’s decree will be affirmed, and the bill dismissed as to all the matters of demurrer except the cause of demurrer based upon the alleged fact that the limited poll tax had already been levied for the year before the levy of the school tax. The demurrer will be overruled on that point, and the cause remanded for further proceedings in that regard, unless the parties can agree upon final decree.
The defendants will pay the costs of this court, the costs of the court below to be paid as directed by the-chancellor.