
    Allen et al. v. Board of Mayor and Aldermen of Smithville.
    (Nashville.
    December Term, 1917.)
    STATUTES. Partial invaUdity.
    Priv. Acts 1917, chapter 753, granting a charter to Smithville, is void as a whole, in that section 1 thereof, a provision of vital importance, provides, contrary to Constitution, article 2, sections 28, 29, as to taxes throughout the State being uniform, that not more than one acre of lands included within boundary and used for farming purposes shall 'be taxable.
    Acts cited and construed: Acts 1917, ch. 753.
    Cases cited and approved: Jones v. Memphis, 101 Tenn., 188; Taylor, McBean & Co.' v. Chandler, 56 Tenn., 366; Reelfoot Lake v. Dawson, 97 Tenn., 151; Keesee v. Civil Dist. Board, 45 Tenn., 127; Malone v. Williams, 118 Tenn., 391.
    Constitution cited and construed: Art. 2, secs. 28, 29.
    FROM DE KALB.
    Appeal from the Chancery Court of De Kalb County. —Hon.. A. H. Roberts, Chancellor.
    Wade, Cooper & Floyd, R. L. Turner and J. A. G-ot-hard, for appellants.
    P. C. Crowley, for appellees.
   Mb. Justice FeNtbess

delivered the opinion of the Court.

The bill in this cause seeks to have adjudged unconstitutional and void chapter 753 of the Private Acts 1917, which granted a. charter to Smithville, the county seat of De Kalb county. The chancellor sustained the bill, and adjudged the act unconstitutional, and the defendants appealed to this court.

Complainants allege that they are citizens and taxpayers in the territory covered by the act, and filed their bill on behalf of themselves and all the other citizens and taxpayers similarly situated, against the defendants named, who hold the offices of mayor and aldermen of the town of Smithville, seeking to restrain the defendants from performing the functions of their respective offices, upon the ground that the act of the legislature creating the corporation, as heretofore stated, is invalid.

Subsequent to the passage of the act, pursuant to section 20 thereof, which made the effectiveness of the act dependent upon a favorable vote of a majority of the qualified voters, an election was held by the electors of the territory covered thereby, and they adopted the charter created by the act.

After defining the boundaries of the territory to be included by the corporation, it is provided in section 1 as follows:

“Provided, however, that not more than one acre of any lands included in said boundary and used for farming purposes shall he taxable under this act, hut said one acre shall include the dwelling houses and barns on said farms.”

The bill avers that the corporate limits extend two miles or more from the business portion of the town, and include large bodies of farming lands.

We think this provision renders the entire act void. In Jones v. Memphis, 101 Tenn., 188, 47 S. W., 138, an act of the General Assembly which extended the limits of the city of Memphis was attacked. By this act it was provided that for a certain period of time the annexed territory should be exempt from the current rate of taxation. This court held that the act was violative of sections 28 and 29 of article 2 of the Constitution of the State, which provide, in substance, that taxes throughout the State shall be equal and uniform. This court, in applying these provisions of the Constitution to the act under examination, said:

“The court is of opinion that taxation must always be uniform and equal throughout the extent of the same jurisdiction; that State taxes must he equal and uniform throughout the State; that county taxes must he equal and uniform throughout the county, and that a city tax must be equal and uniform throughout the city, so far as revenues for current expenses or future wants are concerned; and that this principle is fully sustained and illustrated in the cases of Taylor, McBean & Co. v. Chandler, 9 Heisk. (56 Tenn.), 366, (24 Am. Rep., 308); Reelfoot Lake v. Dawson, 13 Pickle (97 Tenn.), 151, (36 S. W., 1041, 34 L. R. A., 725); Keesee v. Civil Dist. Board, 6 Cold. (45 Tenn.), 127, and a number of other eases.”

Speaking further, the court said:

“The logical result of the contrary holding as to taxation would he that in every city taxes might be different in different wards and on different streets; in every county taxes might he different in every civil district; in the state taxes might he different in every county and in each division — all clearly in violation of the Constitution and our whole theory of equal and uniform taxation.”

See, also, Malone v. Williams, 118 Tenn., 391, 103 S. W., 798, 8 L. R. A. (N. S.), 590, 12 Ann. Cas., 707.

It is insisted, however, that this provision of the act does not affect the integrity of the charter as a whole, and therefore it can be elided. We are of the opinion that the objection is fatal to the act. We cannot say that if this provision had been omitted that the legislature would have passed it. In Jones v. Memphis, supra, the contention was likewise made that the provision exempting the territory, added to the municipality, from taxes, could be elided, and the act saved, hut this court refused to presume that the legislature would have passed the act with this provision eliminated. It is patent here that this exemption provision is a matter of vital importance. Lands used for farming purposes cannot ordinarily hear the burden of town or city taxes. Furthermore, this court cannot guess as to how the electors would have voted, on the question as to whether or not the charter should he accepted, if this provision of the act had been omitted. It is quite probable that it was an important factor in influencing the votes of those who expressed a choice in the election. It is improbable that the electors who owned land in the territory covered by the act, which was used for agricultural purposes, would have voted to impose taxes on their property to build and maintain distant urban improvements.

The decree of the chancellor is affirmed.  