82 Tenn. 56 | Tenn. | 1884
delivered the opinion of "the court.
As this case comes before us, it is a bill filed by the State against the Memphis & Charleston Railroad Company to collect the State taxes on the McMinn-ville & Manchester railroad, and the Winchester & Alabama railfoad, for the years 1872, 1873 and 1874. The bill alleges that these two railroads were sold in 1871, under a decree obtained by the State for the enforcement of a statutory lien, and were, bought by the Memphis & Charleston Railroad Company. That company afterwards sold the roads to the Nashville, Chattanooga & St. Louis Railway Company, and conveyed them to that company by a deed with covenants of general warranty. The bill seeks to charge the Memphis & Charleston Railroad Company with the State taxes for the years mentioned as the owner of these roads during those years. The bill also claims the benefit of the warranty contained in the ■deed to the Nashville, Chattanooga & St. Louis Rail
Taking up the causes of demurrer relied on in-argument in the order in which the defendant’s -counsel has presented them, we find the first point relied on is that the Comptroller of the State, by whom the assessments in controversy were made, had no-authority to make them. By the act of 1879, chapter 79, “all collectors of taxes” were made assessors to assess all property which had not been assessed, but on , which taxes ought to be paid by law, and' proceed to collect the taxes. The act made special provision for a re-valuation of the property before the judge or chairman of the county court upon proof, if the owner of the property disputed the assessment of the collector. It also provides, if the owner raises no question on the assessment, but claims that the-property is exempt from taxation, for the immediate institution of a suit by warrant before a justice of the peace for the recovery of the taxes. This court construed the act as giving the collector power to assess and collect taxes on omitted property only for the-term of the office for which he was elected and qual
The cause of demurrer under consideration is that the Comptroller is not a collector within the meaning of the statute. The language of the acts of 1879- and 1883 is that “all collectors of taxes” are made assessors. The meaning plainly is that any person authorized by law to collect particular taxes on property may assess the omitted property “for' all the
It is earnestly argued that as, by the second section of the act of 1879, the collector is required, before commencing suit for the State taxes on omitted property, to submit the facts to the' Comptroller, and •obtain his direction to sue, the Comptroller could not have been intended to be a collector within the statute. The draftsman of the act no doubt had in his mind the cases in which the taxes due the State are ■collected by the county trustee or other local officer, -and provided that such collectors should obtain the •sanction of the Comptroller to the proposed suit. But these are directory details, while the whole scope
Several of the causes of demurrer raise the point, which is next presented, that the only relief sought against the Memphis & Charleston Railroad Company being a money decree, that relief cannot be had upon the allegations of the bill. '' The argument in support of the point assumes that the- property is not assessed to the Memphis & Charleston Railroad Company, and therefore the company cannot be sued in debt or as-sumpsit. And it is then argued that the Nashville, Chattanooga & St. Louis Railway has no right of action upon the warranty of the Memphis company to which the State -can be subrogated, nor- has the State any right of subrogation. But the bill expressly proceeds against the Memphis & Charleston Railroad Company as owner of the property during the years of assessment, making the assessment itself an exhibit to and a part of the bill. That assessment says in so many words that it is of property “ owned by the Memphis & Charleston Railroad Company during the years 1872-3-4, for which (years)
The next cause of demurrer relied on is that the chancery court had no jurisdiction of the cause. The argument in support of this ground of demurrer is that the act of 1879 provides that the collector may •collect the tax by warrant before a justice of the peace, and that no other mode can be resorted to. The general rule is that where a statute creates a right, and points out a mode of enforcing that right, the mode pointed out is ordinarily exclusive: Colcough v. Railroad Company, 2 Head, 171. But the acts under consideration do not create a new right. They merely provide for the enforcement of an existing right, that all property shall bear its equal burden of taxation, by directing the assessment of omitted .property. When the assessment has been lawfully ¡made, the tax stands like any other tax as a debt against the owner of the property, to be enforced either in the mode designated by the statute, or any ■ other legal mode. All that the tax-payer can ask, if he disputes the liability of the property to taxation, is a fair trial in any court having jurisdiction. An action of debt may now be brought in the chan- ■ eery court.
The only other cause of demurrer relied on is that ■the assessment sued on is void, because for the years 1872, 1873, 1874, there was no law in force author
“ It has often been decided,” says Judge Cooley, “that where the only defect in a tax was the want of previous legislation, this might be supplied retrospectively”: Cooley on Tax., 228. And, of course, the Legislature may authorize, retroactively, any proceedings for the assessment of property for taxation which they might have authorized in advance. This is precisely what was done in the famous Nicholson pavement taxes at Memphis, which legislation was sustained by this court. Lea v. Memphis, 9 Baxt., 103. A re-assessment may always be provided for by the Legislature where the previous assessment is invalid, or, we may add, omitted: Cooley on Tax., 232. The acts of 1879 and 1883 do expressly provide for the mode of assessing omitted property, that is, property never previously assessed, no matter for what reason, giving the tax-payers ample opportunity to revise the assessment on proof. Besides, in this case there is no objection made to the valuation of the property, or the amount of the assessment. The mode of ascertaining the value of property for taxation is left to the Legislature: 7 Lea, 566; 12 Lea, 535.
There is no error in the decree of the chancellor,, and it must be affirmed, with costs.