
    Hodges vs. The Mayor and Aldermen of Nashville.
    
    1. The Corporate authorities of the town of Nashville, under a grant of power to “license, regulate and restrain theatrical amusements,” may exercise the taxing power as a means to effect this object.
    2. The 2d section of the act of 1806, ch. 33, conferring the power upon the Corporate authorities to license, regulate and restrain theatrical amusements, and au-thorising the use of the taxing power as a means to regulate and restrain them, is not a law to tax theatrical amusements, within the meaning of the act of 1819, ch. 51, sec. 2, and the grant aforesaid of 1806 is, therefore, not repealed by the 2d section of the act of .1819, ch. 51.
    On the night of the 4th day of November, 1839, Hodges had a theatrical exhibition within the limits of the Corporation of Nashville, without a corporation license. On the next day the Mayor and Aldermen sued him before justice Hall, of a “plea that he render to them the sum of fifty dollars, which to them he owes, and from them detains, in consequence of a forfeiture or penalty by him incurred” for said exhibition, contrary to the provisions of the 2d section of an act passed by the Mayor and Aldermen on the 19th day of November, 1836.
    This by-law in the first section provides for licensing, regulating and restraining theatrical and other exhibitions, and in the second section, imposesa forfeiture of fifty dollars for exhibiting such theatrical entertainments without a corporation license, to be recovered in the name of and for the use of the corporation, before any jurisdiction having cognizance thereof.
    The defendant insisted that the act of 1806, ch. 33, sec. 2, au-thorising the corporate authorities to license, regulate and restrain theatrical exhibitions, by means of the taxing power, was repealed by the act of 1819, ch. 51, sec. 2, and that the by-law in question was contrary to the law of the State and therefore void. Hall rendered judgment against the defendant for the amount of the penalty and costs. From this judgment the defendant appealed to the Circuit court of Davidson.
    The facts being agreed u pon by the parties, the cause was submitted to the consideration of Judge Maney, at the January term, 1840, who being of the opinion that the law of the case was with the plaintiffs, affirmed the judgment of Hall. Hodges appealed in error.
    
      Hollingsworth, for plaintiff in error.
    In this case, from the acts of Assembly of this State, it is insisted that the Corporation had no power, and of right could not lay a tax on theatrical exhibitions.
    The first act in this State in relation to taxing shows, is that of 1811, ch. 43, 2d Scott’s Rev. p. 28,29. This merely imposed a tax of $5, with a penalty of $25 for its violation. The next is the act of 1813, ch. 88, same book, p. 150, which is amendatory of the above act, and simply raises the tax to ten dollars, and the penalty to fifty dollars. The next is the act of 1815, ch. 63, same book, p. 209-10. This act requires the same license, but requires the ex-hibiler to take out a license in every county in which he exhibits, and increases the penalty to one thousand dollars. In all the above recited acts, from their very terms, theatrical exhibitions are not included.
    The next act on this subject, is that of 1819, ch. 51, same book, p. 196-7. This act is still broader and more comprehensive in its terms than the preceding, and requires any person “who shall wish to exhibit any feats of activity, sleight of hand, or any other exhibition for which money is taken,” to take out a license in every county in which he exhibits, for which he shall pay fifty dollars, and also alters the penalty to five hundred dollars. But in order to obviate any doubt on the subject, in relation to theatrical exhibitions, there is this proviso: “Provided, That nothing in this act contained, nor shall any other act, now in force and use in this State, be so construed, as to tax or prohibit any concerts or any theatrical exhibition.” The acts of 1835, ch. 13, sec. 4, and of 1837, ch. 77, sec. 1, refer merely to the preceding acts on the same subject, and in no particular repeal the proviso of the act of 1819. The act of 1806, ch. 33, 1 Scott’s Rev. 960-61, which is the act of incorporation of said town, among other powers, gives that of licensing, regulating, or restraining theatrical or other public amusements within the town,, and the power to pass all laws and ordinances necessary to carry the intent and meaning of said act into effect: but with this proviso, that they should be compatible with the laws and constitution of the State.
    There being no law to the contrary, it is not denied that the Corporation had the power claimed up to the passage of the act of 1819, ch. 51, which made an express exemption of concerts and theatrical exhibitions, and that far, was a repeal of the act of incorporation of 1806, ch. 33, sec. 2, and took away from the said Corporation the power of licensing theatrical exhibitions. The Corporation is the mere creature of the law, and under its charter, must, in the exercise of its powers, conform to the law of the land. 2 Kent Com. 275, Durham vs. Trustees of Rochester: 5 Co wen, 464: 2 Kidd on Corporations, 107-9: Commonwealth vs. Bean, 3 Wheeler’s Crim. Cases, 77-8.
    
      Meigs, for defendants in error.
    This case, it is supposed, does not come within the principle of the case of Robinson vs. The Mayor and Aldermen of Franklin,
      
       
      decided at. last term. The court declared the penalty imposed in that case by the by-laws to be illegally imposed, because it assumed to prohibit the party from doing what he may have been licensed under the general law to d.o, and which, whether he was thus licensed or not, the Corporation of Franklin could neither authorise him to do, nor prohibit him from doing. The money claimed of •Robinson was neither a fine nor a tax, but a forfeiture or penalty imposed because he neglected to take from them a license to do what they had no authority to license. Had it been a fine, it would have been within their regulating and restraining power; and had it been a tax, it would have been referable to the power of taxing, as in the case of the Mayor and Aldermen of Columbia vs. Beasley, decided at the June Term.
    
    The forfeiture in this case, it is true, is imposed nearly in the very words as that in the Franklin by-law. But the Franklin law assumed to act upon a subject which was not in their power; whereas, in one case, nothing is claimed but what is granted. To make the cases the same, it ought to be shown that the revenue law of 1835, ch. 13, sec. 4, or some other revenue law of the State embraced theatrical exhibitions, and that to perform them, a State license was necessary. The exhibitions spoken of in .the act of 1835, which-are not to be had without a State license for each county, are the same as those mentioned in the act of 1819, ch. 51, sec. 1, and a'ie described nearly in the same language. But the proviso of the 2d section of that act fixes the construction of that language, and declares that it does not include “concerts, or any theatrical exhibitions.” Accordingly, neither of these has been taxed. While, then, it is the pleasure of the State not to tax theatrical exhibitions, it is at the same time the pleasure, as expressed in the act of 1806, ch. 33, sec. 2, 1 Scott, 960-1, to grant to the corporation “full power and authority to provide for licensing, regulating ór' restraining theatrical or other public amusements within the town” of Nashville. It is a lawful exercise of this power of licensing, to. enact, that before any person shall exhibit, &c., he shall fii’st obtain a license from the Recorder, paying him, for the privilege, a certain sum; and to impose a forfeiture for exhibiting without first obtaining the license, as is done in the by-law of the 19th November, 1826. See city laws, 35. The State may, and she often does, impose penalties for doing certain things without license, as is done in the very case of exhibitions, &c., in the act of 1837-8, ch. 167, for making which without license the revenue act of 1835 imposes no penalty. But, by the same power, in the exercise of which the State assumes to license some exhibitions, and to impose penalties on those unlicensed exhibitions, she may delegate her right of granting licenses in cases where she allows the exhibition without a State license, to the municipal bodies within her limits. The State might, if she chose, exact a tax for theatrical exhibitions; and by the same right, she may both give the tax, and the power of imposing it, to the corporations within which those exhibitions usually take place. Whenever the State shall pass a law to license theatrical exhibitions, this will be a resumption of the power 'now delegated to several municipal bodies in the State, and then those bodies can no longer license them, nor, of course, any longer exact penalties for unlicensed exhibiting, however they may regulate or restrain them by taxes or by fines.
    
    
      E. H. Ewing, for plaintiff in error.
    Have the defendants the right to tax theatrical exhibitions in the town of Nashville, by virtue of their charter and the amendments to it ?
    By the constitution the taxing power is vested in the legislature exclusively. The legislature is, however, authorised to delegate this power to incorporated towns to a certain extent. The power to tax thus- delegated may be modified or withdrawn. The town possesses the power solely in virtue of the delegation; and the bylaw imposing the tax derives its whole vigor from the act of Assembly giving the power. If the act of Assembly be repealed, the by-law becomes nugatory. The by-law is then the mere conduit of the act of Assembly. These general positions will hardly be disputed. •
    In this case, then, the legislature by the'act of 1806, ch. 33, sec. 2, conferred upon the municipal authorities of the town of Nashville the power to tax “theatrical exhibitions,” which power was exercised through a by-law passed the 19th November, 1836. By an act passed in 1819, ch. 51, the legislature provides generally for taxing “shows,” &c., and provides in the 2d sec., that “nothing in this act contained, nor shall any other act now in force and use in this State be construed so as to tax or prohibit any theatrical exhibitions.” Is this a repeal of the aforesaid act of 1806? The words are general “no act shall be so construed:” the act of 1806 is one and is included; then the act of 1806 “shall not be construed so as to tax, ,&c.” • Suppose this to be the actual reading of the act of 1819, this would be no question — it is in effect and substance the reading of that act. “Be construed so as to tax” is not correct English; make it so and the act will read, “be construed so as that theatrical exhibitions shall be taxed.” Then the substantial reading, so-far as-we are concerned, would be this, “the act of 1806 shall be so construed as that theatrical exhibitions shall be taxed.” If this were the literal reading of the act, we should have no dispute.
    But it may be insisted that the statute is intended to apply only to cases of taxation by the legislature directly, and that this is its whole scope.
    1st. The words are general, and unambiguous and cannot be restrained.
    2nd. This law of 1806 is the only law giving authority to tax or taxing theatrical exhibition's. ,
    3rd. If it be admissible to allude to the history of the country, Nashville in 1819 was the only scene of these exhibitions, the only place where a by-law existed, and there was as above stated, no general law, taxing theatrical exhibitions.
    But is a power given to a corporation ever withdrawn by general words in an act of Assembly, or must there be a special reference to the act conferring the power, and a special repeal of it? There is no rule of law known to me by which it is necessary to mention corporations in an act of Assembly, specially, that they may be included within its provisions. At all events the burden of producing such authority rests with our opponents. It is unnecessary to discuss the difference between municipal and other corporations; though an examination of this difference would render this last question more clearly favorable to us. Private corporations have generally vested rights in the grants of privileges made to them, or at least have a private and individual interest in such grants. In the former case it is proper to presume that the legislature has not exceeded it's legitimate or constitutional powers, and in the latter that they have not churlishly interfered with that which was a favor to a set of individuals. Grants to municipal corporations on the contrary, being merely part of the machinery of gov-eminent, may be as readily supposed to be interfered with or altered as any other more general provision. It is believed, however, that no authority can be shown exempting any persons, whether natural or artificial, from the operations of the general words of a statute, except “the sovereign power,” and possibly another exception not necessary to be mentioned here.
    
      
       See Humpreys’ Rep. Vol. 1, p. 156.
    
    
      
       See Humphreys’ Rep. Vol. 1, p. 232.
    
   Ttjexey, J.

delivered the opinion of the court.

This is an action brought by the Corporation of Nashville to recover from the plain tiff in error, a penalty of fifty dollars, for having opened a theatre and exhibited plays within the limits of the city without having obtained from the corporate authorities a license therefor. And the question is, as to the power of corporations to inflict the penalty for so doing. The law of the Corporation under which the suit is brought, was passed on the 19th of November, 1836, (city laws, 35,) and clearly warrants a recovery, provided the Corporation had power to pass it. To enable it to have done so, the power must have been conferred by legislative authority. The town of Nashville was incorporated by the act of 1806, ch. 33, in the 2d section of which, among other things, the power is given to the Corporation to provide for “licensing, regulating, or restraining theatrical or other public amusements within the town.” This it is admitted is sufficient to sustain this action, provided the power thus given has not been withdrawn by subsequent enactments; but it is contended that this has been done by the 2d section of the act of 1819, ch. 51. The title of that act is an “act laying a tax on shows,” and it is provided in the 2d section, that “nothing therein contained, nor in any other act then in force and use in the State, shall be construed so as to tax or prohibit any concerts or any theatrical exhibition.” The legislature were making provisions in this statute for revenue for State purposes, and chose to exempt concerts and theatres, not only from its operations, but likewise from all others of a like nature, if there were any that embraced them by construction or otherwise. That is, the legislature did not choose to raise a revenue from concerts or theatres. But how can it be contended that this exemption repealed the power previously granted to the Corporation to regulate, license and restrain them. When the power was granted, the State did not tax them, neither does it now. How is the Corporation then in a different position at present, from what it was when enacted?' Upon this subject thestatute of 1819 exempted them from the operation of any law taxing them. There was no law previous to 1819 which could, by any rule of construction, be made to tax them. The act of incorporation, passed in 1806, is not a taxing law, it is only a law conferring upon the Corporation the power to tax, and, therefore, cannot be operated upon by the 2d section of the act of 1819. The law of incorporation which levies the tax, was passed in 1836, and is, therefore, most clearly out of the operation of the act of 1819, if that act could be held to have repealed the law of the Corporation if it had been previously passed. We are, therefore, of the opinion that the judgment of the Circuit court should be affirmed.  