
    Mayor and Aldermen of Nashville vs. Herbert Towns.
    Ooustitutioual Law. Constitution of Tennessee, art. 2, g 29. County revenue. Act of 1856, ch. 243, gg 3, 4. The act of 1856, ch. 243, gg 3 and 4 directing that portion of the revenue of the county of Davidson, collected within the limits of the city of Nashville, to he paid into the treasury of the said city for its sole use and benefit, is unconstitutional and void.
    FROM DAVIDSON.
    By tbe third section of tbe act of 1856, cb. 243, it is provided that tbe portion of tbe county revenue of tbe county of Davidson, collected by tbe clerk of tbe County Court from privileges exercised in tbe limits of tbe city of Nashville, shall be paid over to tbe treasurer of said city, instead of tbe county trustee; and that tbe clerk of tbe County Court and bis securities shall be liable to a motion in tbe name of tbe corporation therefor, on failure to pay over and account for tbe same.
    
      The fourth section provides, .that the county taxes hereafter collected within the city, shall be paid over directly, by the collector of the county revenue, to the treasurer of said city; provided that the corporation of Nashville shall pay its proportion of the expenses of the County, Circuit, and Criminal Courts, so far as they are a charge upon the county. At the September Term, 1857, of the Circuit Court of Davidson, before Judge Baxtbe, the plaintiff made application for a peremptory mandamus against the defendant, to compel him to pay over to the city treasurer the amount of county revenue collected by him, as county collector, within the city of Nashville, for the .year 1857. A previous demand and refusal was admitted by the defendant. Judge Baxter disallowed the motion and the plaintiff appealed in error.
    G. M. Fogg, for the plaintiff in error:
    This case presents the question of the constitutionality of the act of 1856, ch. 243, sec. 3 and 4.
    The 29th section of art. 2 of the constitution, authorizing the General Assembly to give the counties the power to impose taxes for county and corporation purposes, does not prohibit the Legislature from passing a law, directing the county to pay a portion of said taxes, if they deem it advisable-;, (for the act does not authorize any new levy of taxes.) It was a fact well known to the Legislature, that the city of Nashville, not only paid for the construction of all bridges within its corporate limits, and for keeping them in repair, but that all the poor living within the same were supported by the city, and that the county refused to give the corporate authorities of Nashville adequate immunity and payment for the same. The Legislature might have set forth in the act, the reasons that induced its passage, but they did not see fit to do so, and it is submitted to the Court, whether such an exercise of power, by the Legislature, can be considered a violation of article 2, and sec. 29.
    Again: Although the county trustee is an officer appointed by the county, and a constitutional officer, whose duties are defined by law; yet why should not the Legislature have the power, not to take away from him the privileges to which he is entitled, but to say that certain moneys, or a portion of them that had heretofore been paid over to him, should be paid to some other person or body corporate.
    Again: The county of Davidson is not deprived of its property without compensation, for it is ordered that a portion of the county revenue, collected within a part of the county, shall be paid over to that part, which was intended to compensate it for certain burdens to which it was subjected, thereby relieving the county from the said burdens.
    W. F. Cooper, for the defendant in error:
    The only question raised by the agreed statement of facts in these cases, is the constitutionality of the act of 1856, ch. 243, §§ 3 and 4, under which the plaintiff makes claim.
    
      1. By the 29tb sec., art. 2, of the constitution, it is provided that “ 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.” Under this provision of the constitution, the General Assembly have- authorized the several counties in the State to levy .taxes for county purposes, and such taxes are levied by the counties accordingly. The act of 1856 undertakes to say, . that a certain portion of the taxes thus levied by the county of Davidson, shall be paid to the treasurer of the city of Nashville, to be used for corporation purposes as other funds of the city. It is submitted that this cannot be done. The General Assembly have no power to delegate the right to levy taxes, except so far as they are expressly authorized by the constitution. They might, perhaps, direct taxes, levied by themselves, to be collected in any way they see proper, and to be paid when collected to the county or corporation officers. . But they cannot authorize a corporation to levy taxes for county purposes, nor a county to levy taxes for corporation purposes. And yet this is, in effect, what is attempted to be accomplished by the act of 1856. The collectors of the county revenue, levied for county purposes, are required to pay such taxes into the city treasury for city purposes. Surely this cannot be done.
    2. The county trustee is a constitutional officer, whose duties, although not defined by that instrument, are yet defined by law, and well- understood. He is the proper officer to receive and disburse the county revenue. If the Legislature can deprive this officer of the right to receive any portion of the county revenue, by requiring the collectors to pay the amount collected, to another officer, they may virtually abolish that provision of the constitution, by directing all the county revenue to be paid to some other officer. It is suggested that the General Assembly cannot give a different direction to the county revenue, than that prescribed by the general law of the land, made in conformity with the constitution.
   HARRIS, J.,

delivered the opinion of the Court.

The plaintiffs made their motion in the Circuit Court of Davidson county, for a peremptory mandamus, directed to the defendant, and commanding him to pay over to the treasurer of said city, the amount of taxes collected in the city ,of Nashville. And they submitted the following agreed case: ££ It is admitted by the defendant, that the treasurer of the .city of Nashville has demanded of him, the amouPt of the tax collected within the city of Nashville, for the year 1857, and that the defendant refuses to pay the same, or any part thereof. It was also admitted that the city of Nashville is ready to pay its proportion of the expenses of the County, Circuit, and Criminal Courts, as required by the 4th section of the act of 1856, ch. 243; which amount has not been ascertained. It was further agreed, that the plaintiffs are seeking to recover the fund in controversy, to be held by the treasurer of the city of Nash-yille, as other funds of the corporation; subject to the condition provided by said act. In support of their motion, the plaintiffs rely upon the provisions of the 8d and 4th sections of the act above referred to, which are as follows: sec. 3d. Be it- enacted that the portion of the county revenue of Davidson county, collected by the clerk of the County Court, from privileges exercised in the limits of( the city, be paid over to the treasurer of the city of Nashville, instead of the county trustee ; and that the clerk of the County Court, and his sureties on his bond, be liable to a motion in the name of the Mayor and Aldermen of the city of Nashville therefor, on failure to pay over and account for the same. Sec. 4th, Be it enacted, that the county tax here-after collected within the city of Nashville, shall be paid over directly by the collector of the county revenue, to the treasurer of said city; Provided, that the corporation of Nashville shall pay its proportion of the expenses of the County, Circuit and Criminal Courts so far as they are a charge upon the county.”

This application is resisted by the defendant upon the ground, that this statute is in- violation of the 29th section of the 2d article of the constitution, which is as follows:

The General Assembly shall have power to author ■ ize the several counties and incorporated toivns, in this State to impose taxes, for county and corporation purposes respectively, in such manner as shall be prescribed by law.”

Under this provision the Legislature, by the 14th sec. of the act of 1855, ch. 6., (0. & N. 200.) enacted, that the County Courts, established by this act, are hereby authorized, at the second term in every year, to levy and cause to be collected, a tax for county purposes, as contemplated by the 29th section of the second article of the constitution.” And here is a power expressly delegated to the County Court, to levy and cause to be collected a tax for county purposes, and in the exercise of that power, the fund which is the subject matter of this controversy, was levied and collected, and the legal title to it was vested in the county trustee, for county purposes. Now, has the Legislature the power to divert the fund from the purposes for which it was levied and collected, and transfer it to another - separate and distinct corporation, to be by it appropriated and used at its discretion?

We think not. This would be an unauthorized interference with vested rights. If the sheriff of David son county had an execution in his hands in favor of Towns as trustee, and the Legislature were to pass an act directing him to pay over the money, when collected, not to Towns, but to the treasurer of the city of Nashville, it will not be pretended that this would be any authority to the sheriff to make such payment, and yet it is not easy to perceive upon principle, why the authority would not be as valid in that case as in the one before us.

The County .Court levies the taxes with the view of providing for the current expenses of the county, and if the Legislature has the power to divert the fund thus levied, to other and different purposes, it has the power to bankrupt the county at pleasure.

Perhaps in the present case, it is not necessary to determine whether the Legislature has the power, under this provision of the constitution, to authorize the County Court to levy and collect a tax for corporation purposes,” as they have not exercised such power, but have only attempted to divert a portion of the taxes, in one county in the State, from the purposes for which they were levied and collected, to a wholly different purpose. This they cannot do. There is no error in the judgment, and it will be affirmed.  