
    The Mayor and Aldermen of Bristol v. Wm. Dixon, et als.
    The corporation of Bristol has the power to levy a special tax to pay debts exceeding the rate levied by the State, notwithstanding the act of 1870-1, c. 50, s. 3: Code, 491c, and 1361.
    FROM SULLIVAN.
    Appeal in error by the defendant corporation from the order of the Circuit Court awarding a premptory mandamus, March Term, 1875. John B. McLin, Sp. J., elected by the bar.
    Vance & Wood for the appellants argued:
    1. The power of a municipal corporation to levy a tax is restricted by statute law, and the corporation can not exceed it: Dillon on Mun. Corp., p. 559, § 590; also, p. 576, § 605; Ibid, p. 67, § 27; Nichols v. M. & A. of Nashville, 9 Hum., 261.
    2. A municipal corporation has no right to levy a speeial tax for any purpose, unless it is authorized to do so by statute law: Ibid, § 605.
    3. The power must be construed strictly, and it can levy no taxes, general or speeial, unless the power be plainly conferred: Ibid.
    
    4. The power to levy a special tax, such as is sought by the petition in this case, never has been granted by the Legislature to the Mayor and Aider-men of the town of Bristol.
    5. The only power to tax, which has been delegated to Mayor and Aldermen of Bristol, is the power to levy a general tax, annually, for general purposes, and in doing this, they can not exceed the rate of state taxation: Acts of 1856, c. —, ss. 12, 18, 22; Code, 491a, 491c, 1360, 1359a; By-laws, p. 5, s. 5; Const, art. 2, s. 29, 2d clause.
    6. The power to tax, in said section, is conferred in these words: “ to levy and collect taxes for the purpose of carrying the necessary measures into operation for the benefit of said town.” This means a general tax — to levy and collect annually, a general tax for general purposes, and does not embrace a power to levy a special tax for a special purpose.
    7. The mode of making the annual assessment and collection of taxes by the Mayor and Aldermen of Bristol, is set forth in the By-laws of said corporation, to which reference is made.
    8. That the rate of state taxation for the year 1874, was forty cents on the one hundred dollars worth of property.
    9. That the Mayor and Aldermen for the year 1874, did assess its annual tax to the extent of the rate, of state taxation for said year, to-wit.: forty cents on the one hundred dollars, and is collecting same.
    10. A mandamus will not lie to make a corporation do an act which it has no authority in law to perform.
    
    Bailey & McCroskey for defendants in error.
    We deem it necpssary in the outset to state, that by agreement, this petition was filed jointly to save costs.
    The defense set up in the demurrer and answer is in substance, that the Mayor and Aldermen of Bristol have no authority to levy a tax higher than the State’s levy, to pay said judgments, and having done this, they have exhausted their powers, notwithstanding said judgments remain unsatisfied.
    
      The charter is the law of this case. Municipal corporations can levy no tax, general or special, unless that power is plainly conferred; but this power may be given either in express words, or necessary implications: Dillon on Mun. Corp., § 605.
    Said charter, section 12, among other things, says: “ said corporation shall have authority to keep in repair streets.” Further along in same section, it says: “and to levy and collect taxes for the purpose of. carrying the necessary measures into operation, for the benefit of said town.”
    The power, therefore, to tax for legitimate purposes seems unmistakably conferred. But were it otherwise, the power to improve streets, necessarily implies the power to levy a tax to pay for said improvements: Dillon, § 636.
    The Code, 1369, which requires the same ratio of taxation to be observed by counties and corporations, as that of the State, as we insist, applies to taxes for ordinary purposes, and not to the payment of judgments. It also applies to the subject of taxation. If this power to levy a tax by a corporation higher than the State’s levy, is unconstitutional, the section 3567 of the Code, compelling counties to levy a tax to pay judgments, is also unconstitutional and void.
    The Mayor and Aldermen of Bristol may be compelled by law to repair their streets, and damages may be recovered for any injury sustained, for a failure to do so. If the ordinary levy equal to the State’s, is not sufficient to pay this damage, or expense incurred in fixing the streets; how will this liability be satisfied ?
    These authorities are required by law to remove a nuisance, and to do other acts essential to the health and wellfare of said town. If by means thereof they incur a liability over and above the amount of tax equal to levy of the State, how could the duty be performed without means.
    In this case, a fixed liability by judgments of over $800, is created for the necessary repairs of the streets of Bristol, for the payment of which all means have been exhausted, save; the levy of a . tax to meet it.
    If the corporation has no power in the premises, there is but one bare possibility of these creditors ever getting paid, and that is, perhaps some time in the distant future. The State of Tennessee may raise her taxes high enough to allow this corporation to levy a sufficient tax. This construction of the law is aim ply monstrous. Peremptory mandamus ought to issue: Moses on Mandamus, 127.
    
      
      Note. — 1 The laws of Tennessee authorizing a mandamus to issue against the County Court to compel them to levy a special tax, have no application to municipal corporations. The powers of the County Court to levy a special tax, is based upon this act of the Legislature.
    
   Nicholson, C. J.,

delivered the opinion of the Court.

Wm. Dixon and others obtained judgment against the Mayor and Aldermen of Bristol, for work done in repairing its streets. They filed their petition in the Circuit Court, for the purpose of compelling the corporate authorities to assess a tax for the satisfaction of their claims. To the alternative mandamus they answer, that they have assessed a tax for the ordinary .expenses of the corporation, equal in rate to the State tax, which is insufficient to raise a fund to pay the claims of petitioners; and having exhausted their powers of taxation under the law, they have no authority to make an additional assessment.

The case was tried before Special Judge McLin, who determined that the corporation had power to make an assessment for the payment of the debts of petitioners, and ordered that a peremptory mandamus do issue.

From this judgment the Mayor and Aldermen have appealed to this Court.

It is well settled, that á municipal corporation can exercise no powers but such as are expressly granted to it, and such as are the result of necessary and proper implication. The act of the Legislature, incorporating the town of Bristol, confers upon its corporate authorities the power to have and keep in repair the streets, and also the power to levy and collect taxes for the purpose of carrying the necessary measures into operation, for the benefit of the town. Under these powers it is clear, that the corporate authorities could contract valid debts, for the repairing of the streets, and could levy and collect the taxes, necessary to satisfy the debts so contracted, unless there is something .in the laws of the State which forbids it. For the Mayor and Aldermen it is insisted, that they have a general power only to levy and collect an annual tax, but no power to levy and collect a special tax, such as would be required to pay the claims of petitioners, and that in executing their general power, they can not exceed the rate of State taxation

It is true, that in reference to taxation for some special objects, outside of the usual and proper objects of the corporation, as in sections 491c and 1361, the restriction exists, that the special taxes shall not exceed the rate of State taxation; but this restriction has no application to debts contracted in carrying out the ordinary and legitimate purposes of the corporation. As to these, the Mayor and Aldermen constitute the legislative representatives of the inhabitants of the town. They have the power to order such improvement or repairs in the street, as in their judgment are necessary and proper, for the comfort and convenience of their constituents, and to contract such debts therefor, as may be proper in their discretion, to accomplish the objects. To satisfy the debts so contracted, they have ample power to levy and collect the necessary amount of taxes. The taxes so levied and collected require no special power, nor are they such special taxes as are subject to legislative restrictions.

If, therefore, the annual assessment of taxes, at a rate equal to that of State taxation, should fail to raise an amount sufficient to satisfy debts, contracted in the legitimate exercise of their power — such as opening or repairing streets, there is nothing in the statute laws which would prohibit the corporate authorities from making another assessment to pay such debts. Having ordered the work and contracted the debts, the obligation to make the assessment and collection of taxes at once arises, and upon their refusal to so, •a resort to the remedy by mandamus is proper.

We find no error in the judgment below and affirm it.  