
    Mayor and Aldermen of Columbia vs. Beasly.
    The corporate authority of the town of Columbia may fax privileges; but if this power is exercised by the passage of by-laws which are oppressive and unequdl, such by-laws are void.
    A general allegation in defendant’s plea that a by-law is unequal and oppressive is not sufficient. The defendant must set forth and show, by a specification of facts, the oppressiveness and inequality of such law.
    Thé Mayor and Aldermen of Columbia instituted an action of debt in the circuit court of Maury county, on the 10th day of August, 1837, against Esau Beasly, to recover of him the sum of one hundred and fifty dollars, a tax imposed by the corporation of Columbia upon all persons keeping houses for the purpose of retailing spirituous liquors within the corporate limits of said town. The plaintifis set forth their cause of action as follows: “The Mayor and Aldermen of the town of Columbia assembled, did, in pursuance of and by virtue of the act incorporating the inhabitants of said town, make the following by-law and ordinance, to wit: “Be it ordained by the authority aforesaid, a tax of one hundred and fifty dollars be and the same is hereby levied upon each and every confectionary or coffee house within the limits of this corporation that may be opened at this time, or that may at any time hereafter be opened during the present corporate year, for the purpose of retailing spirituous liquors by the measure, drink or otherwise, to be paid in cash, for the use and benefit of thisóforpo-ration.” And said ordinance further provided, in^tfbstahce, that if any person who was liable to said tax^jliould fail to pay the same, after being duly requested by the constable of the corporation or by any other personcWy authorized to receive the same, that suit should be bijáught for the collection of the same. And the said Mayor qgid Aldermen further aver, that the said Esau Beaslg^ at the time of the passage of the ordinance aforesaid£'£ind since the time thereof, had and now has opened in the town of Columbia and .county of Maury, and within¿the limits jsf Said corporation, a grocery or confectionary,' for- the purpose of retailing and selling spirituous liquors b¿M;he measure and drink, and has» since the passage thereof, so retailed and vended within the limits spirituous;liquors by the measure and drink. And the said Mayor and Aldermen further aver that said Esau Beasly, although requested so to do by the constable of said corporation,Jjas not paid said sum of one hundred and fifty dollars, ié'e* tax aforesaid, to said constable, upon due demand thereof, or to said Mayor and Aldermen.”
    There were two other counts in the declaration substantially the same as the above.
    The defendant pleaded to this declaration: 1. Nil debet, Upon this plea issue was taken.
    2. That at the time of the assessing and levying of the said tax of one hundred and fifty dollars by the Mayor and Aldermen of Columbia, and before and since that time, he was a retailer of spirituous liquors and keeper of an ordinary in Columbia in Tennessee, authorized and licensed to retail spirituous liquors and keep an ordinary in the county of Maury by the laws of the State, and the license issued to, said defendant by the county court for Maury county, and whilst thus engaged in his lawful occupation m the town ot Columbia in the county of Maury, under the authority and license of the State of Tennessee, and his said authority and license being still in force and unexpired, the said law and ordinance of the Mayor and Aldermen of Columbia was passed, in direct contradiction to the laws of the State and in violation of and disregard of his said license so issued as aforesaid. Demurrer and joinder in demurrer.
    3.\That the law or ordinance passed by the Mayor and Aldermen of «the town of Columbia, on the — day of-, 1837, and referred to in the declaration, is unjust, unequal and wanting intfft^ormity, imposing slight burdens on some classes and oppressive and ruinous ones on others, without any regard to th«¡ amount of the property owned, but raising and collecting the largest amount of the taxes for corporation purposes from a smallrclass of citizens with but little property, and collecting but a small portion of the taxes from the great body of the citizens; thereby levying and collecting the taxes without any regard to equality, uniformity, justice or equity in the assessment. Demurrer and joinder in demurrer. ;
    4. That notwithstanding he is authorized by the laws of the State to retail spirituous liquors, yet the said Mayor and Aldermen of Columbia, in enacting the said fifth section of the act or ordinance of the — day of-r, 1837, mentioned in the declaration, imposed the said tax of one hundred and fifty dollars on the defendant as a retailer of spirituous liquors, not regarding the occupation of the defendant as a privilege secured and sanctioned by the law, but regarding the same as a nuisance and vice, and so regarding his said privilege as a nuisance and a vice, he alleges that the said Mayor and Aldermen have imposed the tax of one hundred and fifty dollars on his said privilege and occupation as such nuisance and vice, not with the view of regulating and restraining ordinances and tippling houses, but with the view and for the purpose of raising taxes on nuisances and vices. Demurrer and joinder in demurrer.
    5. That the said fifth section of the act or ordinance of the Mayor and Aldermen of the town of Columbia, referred . , , ,A , , . i i , to in the plaintiffs’ declaration, was not passed by the and Aldermen of the town of Columbia to lay and collect taxes for the purpose of carrying the necessary measures into operation for the benefit of said town. Demurrer and joinder in demurrer.
    7. That the said ordinance of the Mayor and Aldermen of the town of Columbia, passed on the — day of-, 1837, was enacted without any authority from the constitution and laws of the State and in direct violation thereof. Demurrer and joinder in demurrer. At the May term, 1838, the honorable Samuel Anderson* judge, presiding, this cause came on, and being argued, the court was-of opinion that “the declaration-and the matters therein contained were not sufficient in law to enable the plaintiffs to have and maintain their action against the defendant, and that he go hence,” &c.
    From this judgment the plaintiffs prayed and obtained an appeal in the nature of a writ of error to the supreme courts
    
      W. A. Cook, for the plaintiff in error.
    1. Corporations exist either by prescription, the king’s charter or by statute. Wilcox on Corporations, 21: 12 Law Library, 11.
    2. When the charter is created by the king or by statute it is governed by certain regulations called ordinances. These are: 1. Customs; 2.-Regulations prescribed by the charter or by statute; 3. By the rules called by-laws, meaning the laws of the inhabitants of the place. 12 Law Library, 40.
    3. There being no customs to operate in this cause the ordinances are the regulations in the charter and by-laws alone.
    4. When the king creates the charter,.inasmuch as he has the legislative power he cannot introduce in the charter any unreasonable rules or such as are contrary to the common law. 12 Law Library, 55.
    5. The legislature being the law-making power ban confer any powei’s upon the corporation. 12 Law Library, 54.
    6. By-laws within the powers conferred may be enforced by penalty. 12 Law Library, 54, 296.
    7. The act of 1817, ch. 143-, incorporating the town of Columbia, section 2, confers the power to regulate and restrain tippling houses, to impose and appropriate fines and penalties forfeitures, to lay and collect taxes, and to pass all laws necessary and proper to carry into effect the powers conferred.
    8. The power to restrain and tax tippling houses confers the power exercised by the Mayor and Aldermen in this case; therefore, the ordinance passed on the 19th day of April, 1837, sec. 5, is legal and valid. The power to restrain is equivalent to the power to suppress nuisances; all corporations have this power. 12 Law Library, 79, 336, 337, 338, 339.
    
      Gahal, for defendant.
    1. The sovereign power of every country has the- right to amend or annul the charters of municipal corporations. 2 Kent, 274,3d ed: Dartmouth College vs. Woodward, 5 Cond. Rep. 534: Terret vs. Taylor, 3 Cond. Rep. 284.
    The charter of the corporation of Columbia was granted under the constitution of 1796. See acts 1817, ch. 144 2 Scott’s Rev. 400. The second section, among many other enumerated powers, authorizes the Mayor and Aldermen “to prevent and remove nuisances, to impose fines, penalties and forfeitures for the breach of their by-laws, to lay and collect taxes for the purpose of carrying the necessary measures into operation for the benefit of said town, to regulate and re-stain tippling houses, &c.” This charter is a constitution for this petty legislature, and the Mayor and Aldermen are bound to conform their acts to its provisions and pass no by-laws inconsistent with the constitution and laws of the State. Angel and Ames, 183, 188: 2 Bac. 9.
    By the constitution then in force, article 1, section 26, all taxes on lands shall be uniform in such manner that no one hundred acres shall be taxed higher than another, except town lots, which shall not be taxed higher than two hundred acres of land each; no free man shall be taxed higher than one hundred acres of land, and no slave higher than two hundred acres.
    . The constitution of 1834 establishes a new principle of taxation, which is repugnant to that which existed in 1817.
    
      By article 2, section 28, it is provided that “all land liable to taxation, town lots, slaves, &c., shall be taxable. -All i n i , t . i , , i ty shall be taxed according to its value, that value to be ascertained in such manner as the legislature shall direct, so that the same shall be equal and uniform throughout the State. But the legislature shall have power to tax merchants, pedlars and privileges in such manner as they may direct. A tax on white polls shall be laid, &c.”
    Section 29th provides that “the general assembly shall have power to authorize the several counties and incorporated towns to impose taxes for county and corporation purposes, and all property shall be taxed according to its value on the principles established for State taxation.”
    The 28th section of article 2d of the amended constitution is a repeal of the 27th section of article 1st of the old constitution, and all laws passed under it where they conflict. But the first section of article 11th of the new constitution says that “all laws now in force, not inconsistent with this constitution, shall continue in force.” The taxing power conferred on the corporation of Columbia must have been exercised conformably to the old constitution, and that is inconsistent with the principles of the new constitution, and is thereby annulled. The convention seem to have regarded the matter in this light by expressly providing that the legislature “may authorize the several incorporated towns to impose taxes.” The constitution does not say they may tax, but may be authorized to tax.
    The legislature, at the session of 1835-6, authorized the counties, but omitted to empower the corporations to lay taxes. From this omission inconveniences may arise, but corporations cannot derive powers from inconveniences. There are rights which follow as incident to all corporations, but they have no implied powers. Their delegated power is to be strictly construed. 2 Kent, 277, 296, 298: Angel and Ames, 177 to 206.
    The levying taxes is an exercise of sovereignty. Marr vs. Enloe, 1 Yerger. If the legislature had the right, under the old constitution, to delegate it, (which this case denies,) the convention unquestionably had authority to revoke the grant, by establishing a rule of taxation inconsistent with the con- . ...... . , which existed when the power to tax was con-perre(j on inC0rporated towns in Tennessee.
    2. But if municipal corporations, without an express general law, from the 29th section of article 2d of the constitution can derive authority by implication to conform their taxing powers to the principles of the new constitution, they must, by a general and uniform ordinance, levy the taxes upon the same principles, the same property and occupations, and in the same proportion that the State collects its revenue; that is, if they tax a privilege, they must conform such tax exactly to the proportion which it bears to the revenue collected by the State from land, slaves and privileges. If they can deviate from this rule there will be no uniformity and no equality, and one species of property or one avocation may be made to bear all the burdens of the corporation expenses and others reap all the benefits. For a just system of taxation see 2 Kent, 336.
    By levying the great burden of taxes on any one privilege or species of property the corporate towns can exclude any of the useful avocations by which men live. They can lay all the taxes on lots and force owners to sell at any price; or all on slaves, and establish an abolition jurisdiction in Tennessee; or all on merchants, and exclude trade; or all on polls, and give property a dangerous preponderance over rights strictly personal. If all other powers can be absorbed and exercised under pretence of taxation, what can they not do in this age when there are so many restive spirits warring against our ancient laws and blessed institutions? They can draw marriage under the ban of their taxing prohibition, and legalize general libertinism; or they may level all the force of their unlimited taxing power against private property and compel its owners to sell to the corporation. If they can tax vice for the promotion of virtue, when what is vice and what is virtue depends too often on fashion, caprice or enthusiasm, and that which is the one to-day will be the other to-morrow, there is no security for those who claim the protection of written constitutions and fixed principles.
    3. By-laws must be reasonable and are void for oppression. Angel and Ames, 184, 198: 2 Kent, 296. At the time this corporation taxed the privilege of keeping a house for sale of liquors one hundred and fifty dollars the State taked the same privilege twenty-five dollars, and the privilege of merchandising from twenty to one hundred and fifty dollars, graduated in proportion to the capital employed. What an enormous disproportion and outrage upon all principles of justice and equality!
    4. The corporation has no power to lay heavier taxes upon this privilege upon the ground that it is a nuisance. The power to tax and the power to restrain nuisances are distinct. A tax may be levied to remove nuisances, but the nuisance itself canñot be taxed. A tax can only be levied upon that which is lawful. 3 Wheeler’s Cases, 76. The corporation may restrain tippling houses, but a licensed grocery is not a tippling house. Dunaway vs. State, 9 Yer. 352.
   Green, J.

delivered the opinion of the court.

This is an action of debt to recover one hundred and fifty dollars, the tax assessed by the corporation aforesaid for the year 1837, upon the defendant, as the keeper of a grocery for the retail of spirituous liquors in the town of Columbia. The ordinance laying the tax, was passed thü 19th of April, 1837, and is as follows: “Be it ordained by the authority aforesaid, that a tax of one hundred and fifty dollars be and the same is hereby levied upon each and every grocery, confectionary or coffee house within the limits of this corporation that may be opened at this time, or that may at any time hereafter be opened during the present corporate year for the purpose of retailing spirituous liquors by measure, drink or otherwise, to be paid in cash for the use and benefit of this corporation.”

The defendant pleaded, first, nil debet, to which there was anissue; secondly, thathe soldliquors byvirtueof an authority and license under the laws of this State. To this plea the plaintiff demurred. The third plea alleges that the tax of one hundred and fifty dollars is oppressive and unequal. To this plea there is a demurrer. The fourth plea alleges that the Mayor and Aldermen, in imposing the tax, regarded the privilege of selling liquor not as a lawful trade but as a vice. rj,Q pjea tiiere was a demurrer. The fifth plea alleges that wag imposed with a view to prohibit the defendant from pursuing a lawful occupation, and not for the purpose of raising a revenue. To this plea there is a demurrer. The sixth plea alleges that the tax was not laid to cany any necessary measure into operation; and the seventh plea says the corporation had no power to pass the ordinance; to each of which there are demurrers. The court gave judgment upon the demurrer for the defendant on the ground that the declaration does not set out a good cause .of action. From this judgment the plaintiff appealed to this court.

The charter of the corporation of Columbia, October, 1817, ch. 143, sec. 2, expressly confers the power on the corporation to lay and collect taxes. The constitution, article 2, section 28, empowers the legislature to tax’privileges in such manner as they from time to time may direct. By the act of 1835, ch. 13, sec. 4, retailing spirituous liquors is made a “privilege,” and taxed as such.

There is no question then but that the corporation had the right to tax tippling houses to some extent. The power to lay this tax, if it exist at all, must be drawn from the direct taxing power ©inferred in the charter. It cannot be derived from the power to regulate and restrain tippling houses,. That must be done by such ordinances as will prevent these houses from becoming disorderly, and imposing penalties for the infraction of such laws. The taxing power could only have been exercised ip reference to this trade as a lawful oc-, cupation, affording to the persons who follow it a profit which would make it proper they should pay a tax for the privilege, By the 28th section of the 2d article of the constitution it is provided that all property shall be taxed according to its value, and that no one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value; but the legislature may tax privileges as they may from time to time direct. The 29th section of the same article provides that counties and corporations “shall tax property according to its value, upon the principles established in regard to State taxation.” Nothing is said in this section in regard to privileges, and therefore ^ ^ ^ they are left, in regard to them, to the exercise of a discretion. It would be safe t<3 conform the exercise of this power to the principles established in regard to State taxation} and to tax privileges in the proportion they pay to the State. But a want of exact conformity in this respect would not make the tax void, for the legislature may tax privileges in what proportion they choose, and so may corporations, provided the inequality be not such as to make it oppressive on a particular class of the community. A by-law for oppression is void. Angel and Ames, 184.

If, in this case, it were shown by the pleadings what amount of revenue was needed in Columbia for carrying necessary measures into operation for the benefit of the town, and what tax was paid for property, and what for other privileges, and thus it were made to appear that the taxes were so unequal as to make this an oppressive tax, we should have no difficulty in declaring the ordinance by which it is levied void. But this is not the case, and we cannot act upon what we may suppose the fact to be. For ought we know, expensive improvements are in progress, and other privileges are also paying high taxes. The general statement, in the third plea, that the tax is oppressive and unequal, is not an allegation of facts from which the court can say it is oppressive and void. The other pleas, to which there are demurrers, are manifestly bad.

We think, therefore, that the declaration contains the statement of a good cause of action, and that no one of the pleas to which the plaintiff demurred constitutes a good de-fence to it, and therefore the court erred in giving judgment for the defendant.

Reverse the judgment and remand the cause to be proceeded in.  