State ex rel. Woollen v. Pearson, Nos. 1, 2

Nos. 1, 2 | Tenn. | Apr 15, 1917

Me. Justice. BuchaNAN

delivered the opinion of the Court.

In each of the above cases the State, on the rela^ tion of its revenue agent, sought the issuance of the writs of mandamus to compel the county trustee to proceed to hack or reassess certain property.

Such proceedings were had in each case as that, on March 16, 1915, the chancellor decreed the issuance of the peremptory writ of mandamus, in accordance with the prayer of the bill. From each of these decrees the trustee has prosecuted a broad appeal to this court. Since the rendition of the decrees the General Assembly of this State passed chapter 124 of the Public Acts of the year 1915, reading as follows:

“House Bill No. 327.

“An act to prevent back or reassessment of real and personal property which has been assessed by the regularly constituted assessing authorities, and to repeal all laws in conflict herewith.

“Section 1. Be it enacted by the General.Assembly of the State of Tennessee, that from and after the passage of this act, it shall not be lawful fo.r any back or re-assessment to be made against any property in the State of Tennessee which has been assessed by the regularly constituted assessing authorities : Provided, however, that nothing in this act shall prevent the back or re-assessment of any property real or personal, which shall have entirely escaped assessment and taxation, providing that unless property has escaped taxation by fraud.

“Sec. 2. Be it further enacted, that all laws and parts of laws in conflict with this act be and the same are hereby repealed.

“Sec. 3. Be it further enacted, that this act take effect from and after its passage, the public welfare requiring it.

“Passed May 15, 1915.

Wm. P. Coopee,

“Speaker of the House of Representatives.

• “AlbeRt E. Hill,

“Speaker of the Senate.

“Approved May 17, 1915.

> “Tom C. Bye, Governor.”

By this'act the back or re-assessment of any property in the State of Tennessee, which prior to the back or re-assessment had been assessed by the regularly constituted assessing authorities, was made unlawful, and the act took effect from and after its passage.

A peremptory writ 'of mandamus, if granted now, would be a mandate to the county trustep to do a vain thing, for if he assumed jurisdiction of’ the subject-matter, and reached the conclusion that, under the statutes of this State antedating the act of- 1915, there should be a back or re-assessment of the property, such a result could not be accomplished because of the controlling effect of the undisputed fact that the property involved in each case had been assessed by the regularly constituted assessing authorities, and the taxes paid by the owners of the property based on such assessment prior to the institution of any of the proceedings here involved; and because, by the act of 1915, a back or re-assessment under such a state of facts is made unlawful.

' In one of our cases, quoting, from High on Extraordinary Legal Remedies (3d Ed.), section 39, it is said that the writ “issues only when there is a clear and specific legal right to he enforced, or a duty which ought to he and -can be performed, and where there is no other specific and legal remedy. The right which it is sought, to protect must therefore he clearly established, and the writ is never granted in doubtful cases. The person seeking the relief must show a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced. The writ, if granted, must also be effectual as a remedy, and must be within the power of the respondent, as well as his duty, to do the act in question. It follows, also,. from the important position which this writ occupies as a remedial process, as well as from its nature ah an extraordinary remedy, that the exercise of the jurisdiction rests, to a considerable extent, in the sound discretion of the court, subject always to well settled principles which have been established by the courts or fixed by legislative enactment. Causes may therefore arise where the applicant for relief has an undoubted legal right, for which mandamus is the proper remedy, but where the court may, in the exercise of a judicial discrimination, still refuse the relief.” State v. Wilbur and Walker v. Henderson, 101 Tenn. (17 Pick.), pages 211-221, 47 S.W., 411" court="Tenn." date_filed="1898-09-25" href="https://app.midpage.ai/document/state-v-wilbur-8299334?utm_source=webapp" opinion_id="8299334">47 S. W., 411, 413.

See, also, Harris v. State, 96 Tenn. (12 Pick.), 496-520, 34 S.W., 1017" court="Tenn." date_filed="1896-03-21" href="https://app.midpage.ai/document/harris-v-state-8298964?utm_source=webapp" opinion_id="8298964">34 S. W., 1017; State v. Enloe, 121 Tenn. 13" court="Tenn." date_filed="1908-09-15" href="https://app.midpage.ai/document/american-steam-laundry-co-v-hamburg-bremen-fire-insurance-8300601?utm_source=webapp" opinion_id="8300601">121 Tenn. 13 Cates), 347-380, 117 S. W. 223; Brown v. Ice Co. 122 Tenn. (14 Cates), 239-247, 122 S. W., 84, 19 Ann. Cas., 308.

It is however, insisted for the revenue agent that the passage of the act of 1915 should not affect proceedings pending at the time • of its passage, and he relies on .section 61 of Shannon’s Code, reading as follows:

“The repeal of a statute does not affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.”

There is no merit in this insistence. The act of 19Í5 was not a repeal of any of the legislation antedating it relied on by the revenue agent, although the later ^act made unlawful that which might have been done under former .legislation. The act of 1915 does not expressly, or by implication, repeal any former legislation.

The effect of the act of 1915 was merely to render unlawful what might have lawfully been done under previous legislation, and, as pointed out in one of our cases:

“It is a mere form of expressing the result to say that the one repeals the other- by implication. The prior act is not repealed, but rendered inoperative. And this is made plain by the fact that a direct repeal of the latter act, without any reference to the former, will, by a rule 'of the common law, give efficacy to the former. It was precisely because tbe old act never was repealed that it thereby became opera-' tive. It is a convenient, though inaccurate,” use of language to say that the new law repeals the old, and that the repeal of the new law revives the old. More properly the new act is an obstacle to the operation of the old act, which obstacle is removed by its repeal.” Home Insurance Co. v. Taxing District, 72 Tenn. (4 Lea), page 644.

The above quotation was approved in Zickler v. Union Bank & Trust Co., 104 Tenn. (20 Pick.), 277, 57 S.W., 341" court="Tenn." date_filed="1900-03-14" href="https://app.midpage.ai/document/zickler-v-union-bank--trust-co-8299581?utm_source=webapp" opinion_id="8299581">57 S. W., 341.

Another insistence made by the revenue agent is that the act of 1915, when properly construed, does not prohibit the reassessment of property which has escaped adequate assessment through fraud. This insistence seems to rest upon a misconception of the effect of the proviso in the second section of the act. The proviso relates wholly to “any property real or personal, which shall have entirely escaped assessment and taxation.” The proviso has no operation whatsoever upon property “which has been assessed by the regularly constituted assessing authorities.”'

Another insistence made by the revenue agent is that the property sought to be reassessed in one of' these eases is not within the purview of the act of 1915. But we think the insistence is wholly unsound. The words “any property in the State of Tennessee,” are sufficiently broad in meaning to cover any character of property subject to taxation under our laws.

It results that, in our opinion, there is ho merit in any of the points made by the revenue agent, and each of them are accordingly overruled.

The act of 1915, upon the undisputed facts of this case, stands as a clear inhibition of the bhek or re-assessment of the property involved in these cases, and it results that the decree of the chancellor will be so modified as to deny the issuance of the peremptory writ of mandamus.