
    County Court of Obion vs. Marr.
    The act of 1846, ch. 99, does not authorize an appeal from an order of tbe county court assessing taxes for the purpose of erecting public buildings. The exercise of this power by the county court, is not a judicial, but a municipal act, which is not subject to revision by superior judicial tribunals.
    The justices of Obion county, at the April term, 1845, of said court, among other' things, ordered a levy of three cents on every one hundred dollars worth of taxable property of the county, for the purpose of building a new jail. To this act of the county court objections were taken, on the ground, that the levies for that purpose, already made, were amply sufficient to build and complete said new jail without any additional levy. But the objection being overruled by ,the court, G. W. L, Marr, the present defendant in error, took an appeal, under the act of 1844, ch. 99, to the circuit court. The circuit court, after an examination of the case and hearing the proof, believing the objections taken to the levy of the tax by the county court to be well sustained by the facts, reversed the decision of the county court. No appeal was t taken from this decision of the circuit court, nor was any bill of exceptions filed. At the present term of this court the record has been filed, and an assignment of errors made.
    
      J. Davis, for plaintiff in error.
    It is here insisted by said justices, that the taxing power is a political power, and that the power to levy taxes for county purposes, is conferred on the justices of each county in the state, by the legislature, in pursuance of the constitution; and that the judiciary has no power over them. The justices of Cdnnon county vs. Hoodenpile, 7th Humph. R. 147.
    By the 2nd article of the constitution of the State of Tennessee, 1st and 2nd sections, it is provided that the government shall be divided into three distinct departments: the legislative, the executive and the judicial.
    By the 58th section the taxing power is conferred upon the legislative department, to be exercised in such manner as they may direct, &c.
    The 29th section, same article of the constitution, provides, that the general assembly shall have power to authorize the several counties and incorporated towns in the state, to impose taxes for county and corporation purposes respectively, in such manner as shall be prescribed by law. Again, the legislature may vest such jurisdiction as may be deemed necessary in corporation courts. See art. 6, sec. 1st, constitution.
    In pursuance of the above named provisions of the constitution, the legislature has by various statutes authorized the justice of the county courts to levy a tax or taxes for county purposes. See Statutes C. & N. page 198, 199, 203,609.
    The power to levy a tax for county purposes, is a part of the fiscal or taxing power of the state, delegated to the justices pursuant to the constitution, and the judiciary has no power to control them in the exercise of that power. 7th Humph. 147. *
    And if the act of 1844, chap. 29, giving an appeal from the decision of the county to the circuit courts, was intended to give the circuit court control over the justices of the county court, in the exercise of this fiscal or political power, it is unconstitutional.
    
      M. Brown, for the defendant in error.
    • It is contended there is no error in the record now before this court, upon which this writ of error can be sustained. The excessive exercise of the taxing power by some of the county cofirts, particularly in this end of the state, has long been a subject of complaint by property holders. The subject was brought before this court in the case of Marr vs. En-low, 1 Yer. R.. 452, and the decision in that case put an end to ‘this excessive exercise of power, by deciding that all laws conferring discretionary power on the county courts, were unconstitutional and void. Thus the law stood until the adoption of the amended constitution. By the 29th sec. of the 2nd article, of which the following provision is made, “the general assembly shall have power to authorize the several counties and incorporated towns in this state, to impose taxes for county purposes respectively, in such manner as shall be prescribed by law; and all property shall be taxed according to its value, upon the principles established in regard to state taxation.”
    Now the question arises, what power in regard to taxation, has the legislature conferred on the county courts? By the act of 1835, ch. G, sec. 1, the present county courts are “established.” By the 14th section of the same act, they are authorized to levy and collect taxes for “county purposes” under certain restrictions, but conferring no power to levy taxes for local improvements, &c. By the subsequent act of 1834, ch. 23, sec. 2, they are authorized to levy taxes for building bridges and causeways on public roads, &c. And by the act of 1835, ch. 34, section 1, 2, power, under certain limitations, is conferred to levy taxes to rebuild jails. Under this last named act, the power in question was attempted to be exercised by the county court of Obion county — by both the letter and spirit of that act, the power of the county court was limited to the amount of money necessary to rebuild the jail. As in this case, a sufficient amount had already been levied for the purpose, and as there existed no pretence that a further exercise of the taxing power was necessary, the circuit court did right in deciding that the decision of the county court was erroneous.
   Tueley, J.

delivered the opinion of the court.

At the April term, 1845, of the county court of Obion, the justices of the court made an order, establishing the rates of county tax for the year 1845 for said county, and among other things assessed three cents on each hundred dollars worth of taxable property, for the purpose of building a public jail, against which assessment George W. Marr, in open court, pretested, and assigned as reasons therefor, that more money had been already assessed for building a jail, than was necessary for that purpose; and that he and the inhabitants of the county were aggrieved by the assessment. The justices overruled the objections and let the assessment stand, from all which Marr appealed to the circuit court.

Upon the hearing in the circuit court, the judge considered that the judgment of the county court should be reversed, and the justices of the county of Obion should pay the cost, and a writ of error is thereupon prosecuted to this court.

We do not design, nor is it necessary, that we should enter into an investigation of the l’ight and powers of the justices of the counties of this state to assess taxes upon taxable property for county purposes; the power so to do is expressly given, and the circuit court has no authority to control the justices of the counties in the exercise of this power by annulling the assessment made by them, upon appeal taken by a citizen of the county from such assessment. The assessment is not a decree or decision of the county court from which an appeal is given by the act of 1844, chap. 99, but is a municipal provision made for the regulation of the fiscal affairs of the county, and from which no appeal is given. If the assessment be made by the justices without, or in violation of authority, it is a void act, and the collector would not be protected by it in levying the taxes, and would be liable to an action for so doing. Such is the case of Marr vs. Enlow, 1st Yerg. 452, which has been cited as authority in the present case. That was an action of trover, brought against the collector for a sack of coffee which he had seized for the purpose of enforcing the collection of a tax which was held to have been illegally assessed by the county court of Obion, and it was held that the action would lie.

It would be intolerable if a county court could be har-rassed by every individual of the county, who might be dissatisfied whenever an assessment of taxes was made for county purposes, and compelled to litigate their power to levy in the county court: but this case is even worse than that; it involves the question as to whether the discretion of the court as to the amount to be levied shall be controlled by the circuit judge. Now surely the justices of the county court can tell how much money is necessary for county purposes, better than the circuit judge; they have been vested with discretion upon the subject and there is no revision given to the circuit judge. The protection by action against the collector for illegal levies, is sufficient. Judgment of the circuit court reversed and the appeal from the county court dismissed.  