138 Tenn. 145 | Tenn. | 1917
delivered the opinion of the Court.
Defendants contend that the finding on issue No. 2 settles the whole controversy against the complainant. Standing alone, or considered apart from other matters, it necessarily does, because in response to that issue the jury found there was nothing due the complainant on the contract on which he sued. But there were other issues, with the responses of the jury thereto, some of which were set aside by the chancellor, on motion for new trial by the parties.
It is rightly objected, as we think, that, under section 6282 of Thompson’s-Shannon’s Code, all of the issues must be tried in chancery by the same jury. Now in this case the chancellor permitted certain issues with the responses thereto by the jury, among other issues, No. 2, to stand, overruling the motion for new trial as to them, but he sustained the motion and awarded a new trial as to certain other issues. Ought we to hold that the order granting a new trial as to some of the issues while refusing it as to others, resulted in granting a new trial, automatically, as to all, or that the granting of a new trial as to any of them without granting it as to all
It seems from the record that the chancellor did enter upon another trial, first framing therefor three issues which he thought covered the matter embraced in No. 4, in respect of the quantum, meruit; that he caused a jury to he impaneled; that the complainant refused to' introduce any evidence on these issues because the chancellor would not submit all of the issues which' the complainant offered on the first or original trial of the case, and that the chancellor thereupon directed the jury to return a verdict for the defendants, which was accordingly done, and that he entered a decree, final, dismissing the hill. An appeal was then prosecuted to this court. The vital mistake was committed when the chancellor awarded a new trial on only a part of the issues.
Further on this point: The law is that only determinative issues can he presented; that is, determinative of the whole case or of" some distinct or separable part or branch of the case. Crisman v. McMurray, 107 Tenn., 469, 64 S. W., 711; Connor v. Frierson,
The rule that if there be a new'trial granted by the chancellor, as to one of the material determinative issues he must grant it as to the others, or as to all, will no doubt produce inconvenience, in some instances, but it is, as we think, a necessary deduction from the statutory provision that “all the issues of fact in any case shall be submitted to one jury.” Thompson’s-Shannon’s Code, section 6282, supra.. It is apparent, too, that in the absence of such a provision jury trials in chancery might be practical
The question remains whether the complainant is entitled to judgment on the amount found for hjm under issue No. 4— $9,403.80. The solution of this question depends on the construction of section 4 of chapter 479, Acts 1909. That section so far as necessary to quote here, reads:
“Sec. 4: Be it further enacted, that each vocation, occupation, and business hereinafter named in this .section is hereby declared to be a privilege, and the rate of taxation on such privilege shall be as hereinafter fixed, which privilege tax shall be paid to the county court clerk as provided by law for the collection of revenue. . . .
“Each foreign construction company, with its chief office outside of this State, operating or doing business in this State, directly or by agent, or by any subletting contract, each, per annum, in each county .•. $100.00.
*152 “Each domestic construction company and each foreign construction company, having its chief office in this State, doing business in this State? each, per annum, in each county.$25.00.
“The above tax shall be paid by persons, firms, or corporations engaged in the business of constructing bridges, waterworks, railroads, street paving construction work, or other structures of a public nature. ’ ’
Section 16 of the same act reads:
“Be it further enacted, that it is hereby declared a misdemeanor for., exercising any of the foregoing privileges without first paying the taxes prescribed for the exercise of the same, and all parties so offending shall he liable to a fine of not less than $10.00 .nor more than $50.00 for each day such privilege is exercised without license; hut this inhibition shall not apply to any person, firm, or corporation engaged in interstate commerce. ’ ’
Complainant insists that section 4 discriminates between citizens of Tennessee and those of other States requiring the latter to pay a tax of $100 for the privilege of doing railroad construction business here, while citizens of this State are required to pay only $25, hence that the section is in conflict with article 4 section 2, suhsubsection 1, of the federal Constitution, and also with the Fourteenth Amendment to the same instrument. In our judgment the construction suggested is not a sound one. The de- .
It is not denied that complainant failed to pay the tax before he did the work. After the work was performed and before suit brought he paid' the $25 tax. This was too late, even if he had paid the $100. the tax applicable to his situation, he being a citizen of Alabama with his chief office there. It was too late because payment of a privilege tax and procurement of a license after the privilege has been exercised, though before suit brought, will not give the party so paying any right to maintain suit. Saule v. Ryan, 53 S. W., 977. The complainant having acted in violation of a statute in undertaking and transacting the business cannot recover. Stevenson v. Ewing 3 Pick. (87 Tenn.), 46, 9 S. W., 230; Pile v. Carpenter, 118 Tenn., 288, 99 S. W., 360.
The result is the decree of the chancellor dismissing the bill must be affirmed, with costs.