
    Mabry, et al. vs. Tarver.
    The bond executed by the sheriff for the collection and payment of the State and county taxes, in conformity with the act of the assembly passed in 1835, eh. 15, sec. 1 and 2, should embrace the entire term of the sheriff, to wit, two years.
    The bond was made with a penalty of ten thousand dollars. This sum is less than double the amount of the aggregate of the State and county taxes assessed and to be collected for the year 1838 and 1839. This is no valid objection why judgment should not be rendered by motion against the defendant and his securities for the amount of his defalcation.
    The legislature have the power, under the constitution, to prohibit in general the keeping of stallions and jacks for purposes of profit in the propagation of stock, and also to prohibit in general the exhibition of shows, and yet concede these privileges to all those who shall apply for a license and pay for the privilege the amount specified bylaw.
    • The facts of the case are as follows: Thibbets, the trus-. •tee of Wilson county, made a motion against Benjamin S. Mabry and his securities, in the circuit court of Wilson county, on the 17th day of October, 1839, A. J. March-banks presiding, for a failure on the part of said Mabry to pay over, according to law, the balances of the taxes by him collected as sheriff of Wilson county for the several years of 1838 and 1839.
    The trustee produced the following bond to the court: “State of Tennessee, Wilson county. Know all men by these presents, that we, B. S. Mabry, &c. &c. &c., all of the State and county aforesaid, are held and firmly bound unto Silas Tarver, chairman of the county court of said county for the time being, and his successors in office, for the use of said county, in the sum of ten thousand dollars, to the payment of which we bind ourselves well and truly to be made, we bind ourselves., our heirs, executors and administrators jointly and severally and firmly by these presents, sealed with our seals and dated the 5th day of March, 1838. The conditions of the above obligation are, that whereas the above bound B. S. Mabry has been duly and constitutionally elected sheriff and collector of public taxes for said county of Wilson for two years from the first Saturday in March, 1838: Now, if the said Mabry shall well and truly collect all county taxes within said county which by law he ought, and well and truly account for and pay over all taxes by him collected, or which ought to be collected, to the county trustee of said county on the 1st days of October in the years 1838 and 1839 respectively, then the above obligation to be void, otherwise to remain in full force and virtue.”
    The trustee produced proof of the appointment of commissioners, according to law, to take the lists of polls and taxable property for the years I83S and 1839 respectively, of the return duly of the lists, and of the levying of the taxes by a competent court. It was admitted by the defendants that the aggregate amount of assessed taxes for the county in the year 1838 was three thousand seven hundred and twenty-three dollars, and for the year 1839 two thousand three hundred and seventy-seven dollars twelve and a half cents; and that these sums had been reduced by payments, leaving a balance unpaid for the year 1838 of five hundred andj twenty-three dollars, and for the year 1839 of one thousand two hundred and thirty-four dollars forty-nine cents i,n the hands of the sheriff.
    The clerk of the county court of Wilson county testified that he made out certified copies of the tax lists for the years }838 and 1839, and that he delivered a certified copy of the tax list of 1838 to the sheriff, Mabry, before the time required by law had expired. He also testified, with regard to the tax lists of 1839, that a transcript thereof was made out in due time, and that the sheriff was notified of the fact of their readiness. It also appeared that a portion of the monies in the hands of the sheriff, for the recovery of which this motion was made, was the sums assessed by the county court for the license of keeping jacks and stallions and for the exhibition of shows.
    Upon these facts the circuit court rendered judgment against the said Mabry and his securities upon their penal bond for the amount of' the deficiencies for the years 1838 and 1837, amounting in all, together with twelve and a half per centum damages, to the sum of one thousand nine hundred and seventy-seven dollars one and a half cents, From this judgment the defendants obtained an appeal in the nature ot a wnt ot error to the supreme court at JNash-ville.
    
      Stall, for plaintiff in error,
    contended: 1. That the tax upon the keeping stallions and jacks, and upon the exhibition of shows, was unconstitutional, and being illegally collected the sheriff rightfully refused the payment of it to the county of Wilson.
    2. That the statute requires that the bond should be taken in double the amount of the assessed taxes. This was less than double the amount assessed. No motion will lie upon a statutory bond unless the statute requirements in regard thereto are strictly complied with. 4 Yer. 155: 5 Yer. 297.
    3. That the bond in this case was taken for two years, and that there should, by a fair construction of the statute of 1835, ch. 15, have been for each year a separate bond.
    
      Attorney General and R. L- Caruthers, for the defendant in error,
    cited act of 1835, ch. 15 sec. I and 2: Kincan- ■ non vs. Carroll, 9 Yer. 82.
   Reese, J.

delivered the opinion of the court.

This was a motion in the circuit court for Wilson county against the plaintiff in error, Mabry, and his securities, for balances of the county taxes of .that county for the years 1838 and 1839, not paid over by him to the county trustee. Judgment was rendered against the defendants below, to reverse which they have prosecuted their writ of error to this court. And here it is insisted: 1. That the bond given by the collector and his securities is not in conformity with the requisitions of the statute 1835, ch. 15, because, first, it embraces two years, 1838 and 1839, when it is insisted that there should have been a separate bond for each year; and second, because the bond is taken in the penalty of ten thousand dollars, which is less than double the amount of the aggregate of the county taxes assessed and to be collected for these two years. As to the first ground of objection, it may be remarked, that the statute does not require in terms that separate bonds should be taken, but requires only that-the bond should be conditioned for the payment of the taxes, in each and every year, he may collect, on the first Monday in October; that the term of office for a sheriff and collector has always been in our State two years, and the bond has uniformly embraced the entire term. And if it had been the purpose of the legislature to have made so marked ah innovation upon established usage as the requirement of an annual bond, it is difficult to suppose that they would not have so directed in terms. As to the second objection, that the penalty of the bond taken at ten thousand dollars is less than double the aggregate amount of the taxes to be collected for the two years, which the record before us shows to be so, we are of opinion that it ought not to have the effect of protecting the plaintiffs from a judgment on motion. We are aware of the principles settled in the cases reported, 4 Yer. Rep. 155; 5 Yer. Rep. 297, and the other'cases referred to in the argument, and of their apparent analogy to the case before us. We are not disposed to question or in the least degree to shake their authority. Those are all cases in which the statute gives a specific penalty in numero, and where the liability of the principal might be much beyond that penalty. Here the liability is confined to the taxes to be collected, and the penalty of the bond prescribed by the statute is not a specific sum; it is to be double the amount of the taxes to be collected; it is a sum to be fixed by estimate and computation; and to hold, that if, in the estimated amount of the taxes when--multiplied by two, any, the least error, should intervene, it should have the effect to defeat the motion given by the statute itself, upon the ground that the bond ceased to be statutory, would be utterly to obstruct the fiscal policy of the legislature set forth in the act. If we are correct in supposing that the bond may be taken to cover two years, it would bo almost impossible to attain entire accuracy in fixing the precise amount of the penalty so as to make it double the amount of the taxes. This difficulty, inherent in the provisions of the statute itself, imposes upon us the duty of exempting a case like the present arising under it from the scope of the principles maintained in the cases referred to.

2. As a portion of the taxes due in the case before us was from the keepers of stallions and jacks, and the exhibitors of shows, it is contended that so much is unconstitutional. The act of 1835, ch. 15, sec. 4, prohibits in general the keeping of those animals for profit in the propagation of stock, and the exhibitions of shows, but concedes the privilege of doing so to all those who shall apply for a license and pay for the privilege the amount specified in the act. The constitution in express terms confers upon the legislature the power to tax privileges. But, it is contended that the avocations in question are not in themselves, and in their nature, privileges. They are not so indeed, unless prohibited. in general by the law; but when so prohibited, the license or permission to pursue them becomes a privilege, and the subject of the taxing power of the legislature. The 7th section of the 11th article, which prohibits the legislature from granting privileges, immunities or exemptions other than such as may be by the same law extended to any member of the community who may be able to bring himself within the provisions of such law, shows the sense in which the convention use the term. It is the license or permission, upon the specified terms, to do that which in general is prohibited. Such license or permission, as has been said, becomes a privilege and the subject of taxation. But it is said, that to concede to the legislature unlimited power to prohibit particular pursuits and avocations in themselves indifferent or useful, and then to license them on specified terms, and tax the privilege, might make the pursuit of farming itself a subject of taxation. The danger is somewhat remote of the indiscreet exercise of such a power, but if it were to occur the corrective would have to be applied by the people themselves in .the exercise of their elective franchise.

Let the judgment be affirmed.  