
    KNOXVILLE: SEPTEMBER TERM, 1847.
    Hope vs. Deaderick.
    1. The power to create corporate bodies for municipal purposes, with the means of self-government, is a legitimate exercise of sovereignty belonging to thé legislative power of a State. And where the legislature incorporates a town, and authorizes it to levy and collect taxes necessary for the carrying into effect the objects of its creation, such act is constitutional and valid.
    2. Where a town is authorized to lay and collect taxes, it must be done in accordance with the provisions of the constitution as to the mode.
    A tax was duly assessed on the property within the limits of the town of Knoxville, and D. A. Deaderick was appointed collector. Hope was the owner of a lot and house situated thereupon in the said limits, and the tax assessed thereupon was for the year 1842 $5, for the year 1843 $3 50, for the year 1844 $5, for the year 1845 $5, and for the year 1846, $5, making in the aggregate the sum of $23 50. Hope refused to pay these taxes, and the collector seized and sold two bureaus, one clock, and one table, the property of Hope, for the payment of said taxes. Hope sued Deaderick, the collector, in trover, before a justice of the peace for Knox county. White, the justice, rendered judgment in favor of the collector, and the plaintiff appealed to the circuit court. The case was tided by judge Alexander and a jury at the October term, 1846, of the circuit court for Knox county. The judge, on the facts stated above, charged the jury, that if the defendant, Deaderick, seized and sold the property alluded to, and it was by him converted, by virtue of authority as collector of taxes for the corporation of Knoxville, for the payment of such taxes assessed by the corporate authorities, the plaintiff in this action would not be entitled to recover; that the authorities of said town had the power to lay such tax, and that the collector would be protected in the sale of property within the corporate limits for the payment of taxes; that the authority granted to the corporation in 1815, to assess taxes, was not inconsistent with the constitution then in existence, but valid; that the amendment of the constitution, and change of the principles of taxation, did not abrogate the power given by the act of 1815; that the corporation did not require the aid of another statute to authorize the assessment of taxes, or to prescribe the mode of assessment, but that it could levy a tax according to the ad valorem principles of the amended constitution.
    The jury rendered a verdict for the defendant, and judgment having been rendered thereupon, the plaintiff appealed to the supreme .court.
    
      Joseph B. Heiskell, for the plaintiff in error. .
    The only question in this cause is, whether the legislature has authorized the corporation of the town of Knoxville to assess and collect taxes.
    The act of 1815, ch. 204, sec. 2, authorized the corporation to lay and collect taxes for carrying the necessary measures into operation for the benefit of said town. 2 Scott Rev. 300. But at the time of the passage of this act, under the then existing constitution of the State, the power of taxation could not be delegated by the legislature to any corporation or county. See Marr vs. Enloe. And the spirit of the constitution fully justifies the decision in that case. By the constitution no one acre of land was to be taxed higher than another, except town lots, which might be taxed as high as two hundred acres of land. While the power of taxation was restricted to the legislature, this was a clause of easy performance, but as soon as the power comes to be delegated to others, it becomes a dead letter. Different tribunals acting without concert con-not tax uniformly.
    The new constitution recognizes the decision in Marr vs. Enloe, as the law of the land, in that clause where it provides, that the legislature shall have the power to authorize the several counties and incorporated towns in this state to lay taxes. If the power existed before under the old constitution, why confer it in express words by the new?
    But this authority would not operate to confirm the powers granted by the act of 1815, and the act being null and inoperative, would hot have any operation by the schedule, which provides, that all laws in force and use shall remain, &c.; for this act being of no force, though it might have been acted under, does not come within the meaning of the terms of that provision.
    2. But admitting the. act of 1815 to be effectual, it was an act passed when taxes were laid specifically, and not ad va-lorem, and the constitutional provision to that effect became part and parcel of the law, and was considered by the legislature in their action on the subject. The new constitution acted as a repeal of this part of the law, and until there is some legislative provision for the change, it cannot take place. The act of 1815 does not authorize a tax ad valorem, because such was not the constitutional mode, nor dqes the schedule continuing that act in force, authorize any thing but a pursuance of that act according to its effect at the time of its passage ; besides the conferring of a power to tax under the old constitution, was a much less responsible task. There was no assessment of the value of property; the lots were only to be enumerated; the legislature could never have contemplated any such power as that of valuing property, and that power must now be conferred by implication, and no implication should be allowed in favor of a right to tax. The acts passed since the new constitution, apparently recognizing the existence of the power to tax, ought not to be relied upon, for the same reason, that no right to tax the people can arise by implication, because it is a right to be strictly guarded and strictly construed.
    
      3. The property taxed is situated in that part of the town incorporated by the act of 1831, and there is no proof or admission that the plaintiff, or those under whom he claims, ever consented to become corporators, and the charter must be shown to have been accepted by the people. Wilcock on Corporations, 16, 17. And a mere negative assent, by not dissenting, is insufficient. The fact that such powers were necessary to the action of corporations is of no force; the state could grant them revenues from other sources, and at any rate such necessity was stronger in the case of the counties than corporations, and the necessity. could not countervail the terms of the constitution.
    
      W. G. Swan, for the defendant in error.
    This is an agreed case to try the question, whether or not the corporate authorities of the town of Knoxville have the power to levy and collect taxes.
    By the act of 1794, ch. 13, the town of Knoxville is established and commissioners appointed by the legislature, whose only duty it was to designate the boundaries of the town. Scott Rev. 1, 501.
    The act of 1797, ch. 21, provides, that the commissioners, five in number, shall be elected by the citizens, and shall have power to levy an annual specific tax on each town lot, &c., and this tax when collected to be used in making and repairing streets, &c. lb. 604.
    The act of 1801, ch. 75, continues in force this act of ’97, and enlarges the powers of the commissioners. Ib. 753.
    The act of 1809, ch. 4, prescribes more fully the manner in which the commissioners shall be elected, who may vote, and continues their power of levying taxes upon those who vote. Ib. 1098.
    The act of 1815, ch. 204, repeals all the former acts; incorporates the inhabitants of the town; provides for the election, by the inhabitants, of mayor and aldermen, and empowers the corporation “to prevent and remove nuisances; to establish night watches and patrols; to pave and keep in repair the streets; to pass all regulations necessary for the same, &e, &c.; “to lay and collect taxes for carrying the necessary measures into operation for the benefit of said town.” The act, by its own terms, is not obligatory on the persons or property of non-residents of said town. Scott, 2 vol., 299.
    The act of 1817, ch. 53, designates those liable to pay a corporation tax, and those who may vote for mayor and aider-men, and those who are excluded from the privilege of voting are also exempted from taxation. Ib. 346.
    So the laws, appertaining to the town of Knoxville, existed under the old constitution, by virtue of which all taxes were specific, and which in express terms does not confer upon the legislature the power to authorize towns to collect taxes.
    The new constitution changes the mode of taxation, and it is insisted that if the act of 1815, ch. 204, be constitutional, it is necessary that the legislature, since the adoption of the new constitution, should have authorized, by express enactments, the collection of taxes in the town of Knoxville, upon the ad valorem principle — which it is admitted has not been done.
    It is contended however, in the first place, upon the authority of the case of Marr vs., Enloe, 1 Yerg., that the act of 1815 is unconstitutional; the legislature not'having the power to delegate to the mayor and aldermen of Knoxville the authority to impose and collect taxes. The case at bar and the case of Marr vs. Enloe differ in this. In the latter the tax was levied by the county court, ■ the members of which derived their offices from the legislature, and not from the people upon whom they assessed the tax, and for this reason was the power in that case held to be unconstitutional. In the case at bar, the person taxed is one of a corporation. He is taxed by officers elected by the members of that corporation. Moreover the act of 1815, ch. 204, after incorporating the town, defines the powers and duties of the mayor and aldermen, which powers and duties would be wholly nugatory unless the authority to levy contributions or taxes upon the citizens of the town be maintained, and this court has held, in the case of the Union Bank vs. Jacobs, that the members of a corporation may do any act which is necessary and proper to carry out the design of their charter. So in this case, if the power to tax were not expressly given by the act, the ends to be accomplished by the charter, and the other powers and duties conferred upon the mayor and aldermen would require them to exact contributions from the citizens, and taxa-. tion is nothing more than uniformity in such contributions.
    But it is insisted that, although the act of 1815 may be constitutional, inasmuch as the constitution under which it passed imposed specific taxes, it has lost its force by the adoption of the new constitution.
    ■ The new constitution, art. 11, sec. 1, declares that all laws not inconsistent with the new constitution, which were in force and use at the time of its adoption, should continue in force until repealed, &c.
    The question arises: Is the act of 1815 inconsistent with the new constitution ? Certainly not. The act does not declare in what manner the taxes shall be assessed; it simply declares that the mayor and aldermen shall have the power “to lay and collect taxes.”
    But suppose the fact, that the authority to collect the taxes being conferredmnder the old constitution, made it necessary since the adoption of the new constitution, there should be some legislative enactment in order to continue in force the act of 1815, do not the acts of 1838, and that-passed in 1841— 2, meet the exigency ? These acts, although they are silent upon the manner in which taxes are to be assessed, yet they are both amendatory of the act of 1815. The one, besides conferring additional powers upon the mayor and aldermen, designating the manner in which the mayor shall be chosen, i. e. by the citizens of the town. The other directing the manner in which the taxes are to be collected, if it does not declare how, or by whom, they are to be assessed. These amen-datory acts, passed since the adoption of the new constitution, are substantially equivalent to an enactment, that the act of 1815 is in force.
   Turley J.

delivered the opinion of the court.

This case presents the isolated question, whether the town of Knoxville, under the provisions of the act of 1815, chap. 204, its charter of incorporation, has the power to levy and collect taxes for municipal purposes.

By the 1st sec. of that act the town of Knoxville, in the county of Knox, and the inhabitants are constituted a body politic and corporate, by the name of the mayor and aldermen of the town of Knoxville, and shall have perpetual succession, and by their corporate name may sue and be sued, plead, and be impleaded, grant and receive, purchase and hold real, personal and mixed property, or dispose of the same for the benefit of the said town, and have and use a town seal. By the 2d sec. it is provided, that the corporation, aforesaid shall have full power and authority, to enact and pass laws and ordinances to preserve the health of the town, prevent and remove nuisances, to establish night watches or patrols, to ascertain when necessary, the boundary, location of streets, lots and alleys, &c. &c.: and to lay and collect taxes for carrying the necessary measures into operation for the benefit of said town. 1

It is not necessary to enter into an argument to prove that it is necessary for the corporate authorities of Knoxville to have a sufficient annual fund for the purpose of exercising the powers conferred upon them; and that this fund can only be obtained by annual taxation upon the property of the corporation.

But the power to levy this tax is assailed upon two grounds: 1st. Because the power to levy taxes is inherent in the legislature of the state, and cannot be delegated; for the sustaining which proposition, the case of Marr vs. Enloe, 4th Yerger is cited and relied upon.

Upon this point, all we deem it necessary to say is, that the state of Tennessee is a sovereign and independent power, except so far as it is restrained by the constitution of the United States; that its legislature has unlimited power of legislation, except so far as it is restrained by the Constitution of the United States and the constitution of the state of Tennessee. That it has always been held and never denied, that the power to create corporate bodies for all municipal purposes, and with the means of self government is a legitimate exercise of sovereignty on the part of the state by its legislature: and that there is nothing in the constitution of the United States or of the state, restraining or prohibiting the exercise of such power by the state.

The case of Marr vs. Enloe, if authority at all, is not applicable to this case; there it was held that the legislature could not transfer the power of taxation to the county court, because the justices were not appointed by the tax-payors, and that it would therefore be taxation without representation. But in the case under consideration the tax payors of the corporation appoint the assessors, and are therefore represented by them.

2nd. It is contended that though the act of 1815, might have been constitutional under the provisions of the old constitution which directed a specific taxation, that it has lost its force under the new, which directs taxation to be ad valorem.

This argument we do not think maintainable. The act of 1815, does not specify the mode or manner by which taxes shall be laid and levied by the corporation, but gives the power. If then, under the old constitution, one mode and manner should have been prescribed; and under the new, another inconsistent therewith, it would follow that the new mode prescribed, might and should be pursued — as the power is not repealed thereby. This would make it necessary then, that corporations in levying taxes, should do so upon the principles of the new constitution, which provides in art. 2, sec. 28, that all property shall be ■ taxed according to its value: and that no species of property from which a tax may be collected, shall be taxed higher than any other species of property of equal value.

We therefore think that the power of' the corporation of Knoxville, to levy and collect taxes in this mode and manner? is complete and perfect under the act of 1815, and affirm the judgment of the circuit court.  