Volume 8 — Tennessee Reports

Appeal in Error by the State from the judgment of the Circuit Court dismissing the motion. May Term, 1872. Gid. B. Black, J. The question made in the case of Cheatham v. Howell, 6 Yer., 312, is not whether the day must be specified, but whether being specified, it must be conformed to. Gfwinn v. Vanzant, 7 Yer., 143, has nothing to do with the question. The Code has not been properly understood in respect of these matters of revenue.

In Errors Phebe sued Vaughan in the court below, in an action of trespass and false imprisonment; Vaughan pleaded that Phebe was a slave and his property; to which plea, Phebe replied, denying she was a slave and the property of Vaughan; upon which replication issue was joined.

<p>Appeal by defendants in error from the judgment of the Circuit Court on motion for revenue, October Term, 1872. S. M. Pite, J.</p>

Appeal in error by defendants from judgments of the Circuit Court rendered on motion in favor of the State, October Term, 1872. Jas. L. Portee, J. The certificate of the Comptroller on which the judgment was rendered was in the words -following, to-wit: ACCOUNT.

<p>1. Motion. Right of trial by jury.</p> <p>In a case by motion, against a revenue collector and his sureties, one of the sureties pleaded non est factum, and others special pleas. These defendants called for a jury to try their pleas. The court below offered to empannel a jury to try the plea of non est factum, but refused it as to the other pleas; these latter pleas being unavailing, if true. Held it was no error to refuse the jury. This does not imply that a jury could be demanded at all. 229</p> <p>2. Same. Plea to. Writing not to be varied by farol.</p> <p>A plea that a bond was not intended to cover certain liabilities, and that another bond was to be executed to cover them, is a bad plea. It is an attempt to vary the writing by a parol agreement. 231</p> <p>3. Agent. Chairman of the County Cowrt.</p> <p>Representations as to the condition of the collector’s accounts made by a Chairman of the County Court to persons about to become sureties, cannot affect the obligation of the sureties, though they are misled thereby. He is not tire agent of the State or county to give such information, and the State or county is not bound by iris act. 232</p> <p>Cases cited: Sewanee Min. Go. v. McMahon, 1 Head, 582; Franklin v. Fkell, 1 Sneed, 497. State v.- Ward & Briggs, 9 Heis.</p> <p>4. County Commissioners. Acting in lieu of a County Court under a void authority.</p> <p>County Commissioners, acting under an unconstitutional act of Assem bly, took the bonds of the collector, dated April 1, 1868, which were indorsed by their president, approved. The grand jury having reported the bonds taken by the Commissioners insufficient in amount, and as to the sureties, additional bonds were taken by the Circuit Judge, June 30, 1868, whereupon the Circuit Judge marked on the bonds of April 1st “ examined and approved in connection with a subsequent bond taken by this court.” (The bonds are by statute prima facie evidence, and must be attacked by proof. The onus of proof of non-acceptance is on the attacking party.) 235</p> <p>Held, 1, that the taking of the bond by the illegal body of Commissioners, if wholly unauthorized, being for the benefit of the State, acceptance by the State would be presumed. 235</p> <p>2. The approval by the Circuit Judge was a legal acceptance of the bonds for the State and county. ‘ 235</p> <p>Cases cited: Qoodrum v. Carroll, 4 Hum., 490; 1 Head, 370; 6 Hum., 195.</p> <p>5. Code Construed, 762, 767, 768.</p> <p>These sections prohibiting any officer from receiving or filing a bond not approved, etc., do not prevent the implied acceptance of such bonds not properly approved, etc. These provisions are for the further security of the public. ' 242</p> <p>6. Official Bonds. Good when acted under.</p> <p>Code, 773, cures these defective bonds, and makes them good as if approved and filed according to law, in all cases where the maker acts under them. ( 244</p> <p>7. Same. Proof of action under.</p> <p>Where a party acting must have acted under the bonds moved upon, or without any, it is conclusive that he acts under those moved upon.244</p> <p>8. Same. Acceptance of by State. TJse of on trial.</p> <p>The production of a bond on the trial of a motion, by the State or its officer, is prima facie evidence of acceptance of the bond, and throws upon the makers the proof of actual and active non-acceptance or repudiation. 245</p> <p>9. Same. Custody of bond. Presumption as to character of.</p> <p>If a bond is in custody of a person acting in a legal and an illegal capacity, his act as custodian of the bond will be referred to his legal character. 247</p> <p>10. Officer, de facto. Appointed by County Commissioners.</p> <p>The tax assessors appointed by the County Commissioners were officers defacto, and their assessments valid. • . 249</p> <p>Cases cited : Calloway v. Sturm, 1 Heis., 764; 2 Swan, 87; 3 Head, 690; 6 Hum., 458; 9 Hum., 162. 250</p> <p>11. Levy of County taxes — -void. Collector and sureties estopped to resist accounting for amownts collected.</p> <p>A levy of county taxes by the Board of County Commissioners is a void act, and might have been resisted by the tax-payers, but if they were paid by the people to the tax collector, neither he nor his sureties can resist a recovery by the county of the amount collected. 253</p> <p>12. Same. Ratified by County Court.</p> <p>The assessment having been made, and the tax books made out, were not handed to the collector until the County Court returned to power. They adopted the levy and assessment, and ordered the books into the hands of the collector. Held that, thereupon, the levy and assessment were legalized, and the collector and his sureties were liable. 250</p> <p>13. Tax Collector. Can not attach bond.</p> <p>The Code, 774, prohibits a tax collector or his sureties from attacking the validity of his bond, or the regularity of the proceedings under which he collects money. This is the proper rule at common law</p> <p>255</p> <p>Cases cited: 1 Hum., 210; Miller v. Moore, 3 Hum., 189; Governor v. Montgomery, 2 Swan, 613.</p> <p>14. Illegality. Public policy as to.</p> <p>The policy of discountenancing usurpation does not lead to the repudiation of the bonds of public officers acting during the continuance of the usurpation, when called to account by the restored and legal government. 256</p> <p>15. Tax Collectors. Raws against to be strictly enforced.</p> <p>Policy requires a strict enforcement of the laws against tax collectors and their sureties. 259</p> <p>16. County Revenue. Revenue docket. Motion.</p> <p>The failure of the County Court Clerk to keep a revenue docket as required by law does not affect the right of the county to proceed by motion. The motion can be sustained upon other evidence. 259</p> <p>Code cited : 501, 503, 670, 3614, 3584.</p> <p>17. State Revenue. Motion. Authority of District Attorney.</p> <p>A proceeding by motion for revenue need not show that the District Attorney is acting under authority from the Comptroller. His .authority cannot be questioned on the hearing. 261</p> <p>18. Release oe Sureties. Construction of Statute. Special act requiring delayed tax booh to be delivered at certain time, no release.</p> <p>A special act directing the County Clerk of Shelby County to deliver the tax books for 1869 before the 1st January, 1870, did not operate to grant any extension of time to the tax collector, and has no effect to release his sureties from liability. 261</p> <p>19. Same. Order of County Court imposing duties on collector.</p> <p>The order of the County Court of Shelby County that the collector should collect the Mississippi River Railroad Tax, a duty belonging, properly, to a special collector, does not affect the liability of the sureties of the collector. 262</p> <p>20. Same. Law imposing new duties.</p> <p>If a law had imposed new duties on the collector, his sureties would be bound for the new duties by the Code, 771. 262</p> <p>21. Collector’s Bond. Does not include collection of Railroad Tax.</p> <p>The County Court had no power to impose this duty on the collector. It might appoint him Railroad Tax Collector, but his sureties on his general bond are not liable for the non-performance of his duties in that behalf. 263</p> <p>22. Railroad Tax. Collector of.</p> <p>A Railroad Tax is to be collected by a special tax collector, whether it is collected for the company, or for the county where it has issued warrants or bonds for the subscription. 266</p> <p>28. Collector’s Bond. Bond for term,. Subsequent bond, liability cumulative.</p> <p>If a tax collector, on accepting the office, gives bond for his entire term, the sureties will be liable jointly with the sureties for the second year of his term for default occurring in the second yeai. 269</p> <p>Code cited: 492, 599, 761, 771, sub-sec. 2.</p> <p>Cases cited: Polk v. Plummer, 2 Hum., 500; Banh v. McDonald, 1 Cold., 84; Mabry v. Tarver, 1 Hum., 94; Nevill v. Day, 3 Hum., 37; Gov. v. Porter, 5 Hum., 165; Broughton v. State, 7 Hum., 193; Lay v. State, 5-Sneed; 11 Hum., 273. 270</p> <p>Statutes cited: 1835, c. 15, s. 1; 1859-60, T. & S. Code 602a, 602 d.</p> <p>24. Unassessed Property. Taxes on. Diability of collector and sureties for.</p> <p>The tax collector is required by law to report property unassessed, and if he collects taxes upon it, he and his sureties are, liable for the amount. It is revenue, and in his hands officially. • 275</p> <p>Cases cited: Jones v. Seanland, 6 Hum.; Gov. v. Montgomery, 2 Swan, 613.</p> <p>25. Interest and Damages. Sureties liable for.</p> <p>The sureties of a tax collector are liable for interest and damages. 275</p> <p>Code cited: 503, 736, 3584, 3614, 3615, 3618.</p> <p>Cases cited: Lay v. Stale, 5 Sneed; 1 Hum., 94.</p> <p>26. Comptroller’s Statement. Prima facie evidence.</p> <p>The Comptroller’s statement of the sum due from a tax collector, is prima facie evidence against' the collector and his sureties, not conclusive. 277</p> <p>Code cited: 207, sub. sec. 10; 731, 732, 733, 734, 742, 580.</p> <p>Cases cited : Allison v. State, ante, p. 1; Anderson v. State, ante, p. 13.</p> <p>27. Application oe Payments. Comptroller’s action not conclusive.</p> <p>Neither the State or the defendants, or co-defendants, are precluded by the application of payments made by the Comptroller from showing that they are erroneously applied. Sums collected on the taxes of one year ought not to be applied to the taxes for another year, and if it be so done, the sureties for the respective years may have the amounts properly applied. 281</p> <p>28. Receipts. For taxes not actually collected. Liability for.</p> <p>Taxes for which the collector has given receipts without in fact making the collection, he and his sureties are liable for. They are equally liable for collection or failure to collect. 284</p> <p>29. Tennessee Bank Notes. Sow accounted for.</p> <p>Tennessee Bank Notes receivable by the State in payment of taxes, if received by the collector and not paid over, must be accounted for as money, at their face value. So of county warrants. 281</p> <p>30. Account. Court may take.</p> <p>A court may take an account, or refer it to its clerk to take it. It is not error to reEuse a reference to the clerk. 284</p> <p>31. Errors and Insolvencies. County Court acts judicially on.1</p> <p>The County Court, in allowing credits for errors and insolvencies acts judicially, and if they act after the proper ’time or otherwise erroneously, the credits can not be contested by the State on a motion against the collector. 286</p> <p>Code cited: 665.</p> <p>32. Commissions. Allowed by Comptroller.</p> <p>Commissions allowed by the Comptroller upon partial payments of revenue will not be disturbed by the courts. 287</p> <p>Case cited: Lay v. State, 5 Sneed; 664.</p> <p>33. Revivor. Death of party after cause is heard.</p> <p>Where a defendant dies while a suit is continued under advisement, the plaintiff may enter his judgment as of the former term, or of the term after the death, at his option without noticing the death, and revive before execution. ■ 288</p>

In Error. This was a motion, made in the court below, by Mur-free, the defendant in error, to order the sheriff of Lincoln county, to pay over to him five hundred and seventy-five dollars, the amount of the proceeds of a tract of land sold by said sheriff, as the property of Oliver Williams, by virtue of two executions against said Williams: one in favor of the plaintiff in error, the other in favor of defendant; to which motion the plaintiff in error was made a party by…

In Error. At the April sessions, 1824, of the county court of Rutherford, Blackman Coleman resigned the appointment of clerk thereof. At the same term of the- court, commissioners were appointed to examine and report upon the claims of Coleman, for books and stationary furnished for the use of said court; who reported the sum of four hundred and twenty-nine dollars and fifty cents, as due to Coleman, upon an account rendered.

In Error. This was a suit commenced by Killough, before a justice of the peace for Hickman county, to recover from W etherspoon, the amount allowed him by law, for attending ten days as a witness, in the suit of Wetherspoon and Shute vs. Thomas Shute and others, in the circuit court of Hickman county. The justice rendered a j udgment against Wetherspoon, for five dollars and costs of suit; from which judgment he appealed to the circuit court.

In Error. This was a motion made by Robert Wright, one of the heirs and distributees of Thomas Wright, deceased, at the April sessions, 1824, of Hickman county court, to he appointed administrator, &c., of Thomas Wright, deceased, who died intestate, in the spring of 1820. The widow, and other heirs and distributees of the deceased, were admitted to defend.

In Error. Washington recovered judgment against Eli Talbot, in the Davidson county court, for'his debt and costs of suit; execution issued against Talbot, which was returned, llno property found;” whereupon the clerk issued an execution against Washington, the plaintiff, for the costs of suit. The execution was superseded; and on return of the supersedeas and execution, a motion was made to quash the execution.

In Error. This was an action of covenant, brought by Harshea against Ferris, in the circuit court for Rutherford county.

<p>The plea of “non infregit conventionem,” to an action of covenant upon a war» ranty of title to land, held bad upon demurrer.</p> <p>The possession of a meeting house, by its officers, for the ordinary purposes of public worship, is as much a possession of the premises, as if there were a dwelling house thereon, and it actually inhabited.</p> <p>Tn an action of covenant, upon a warranty of title to land, an eviction may be proved by parol.</p> <p>A sells land to B, and warrants the title; a part of which land he had previously sold to C, who was in possession at the time of the sale to B. This is a sufficient eviction of B to enable him to bring an action of covenant against A upon his warranty.†</p>

Campbell and Claiborne were the securities of New-nan, in a promissory note, executed jointly by them all, to the Nashville Bank, for 3,500 dollars. Campbell and Claiborne were sued by the bank alone, without joining New nan in the action — they confessed judgment in the county court, where the suit was instituted, for the amount due; of which proceeding Newnan had no notice.

Appeal. The plaintiff, in the court below, produced and read a grant from North Carolina to Stephen Winchester, dated in 1794, for four hundred acres of land, on the north side of Cumberland river; also a deed from the. grantee to George Roberts & Co., and proved the defendant to he in possession of the land in controversy.

In Error. Gregory sued Allen before a justice of the peace for Sumner county, as indorser of a promissory note, for 30 dollars, executed by Alfred Bell. The justice rendered a judgment against Allen, from which he appealed to the county court. At the August term, 1823, of the county court, the cause was tried, and a verdict and judgment entered up for the defendant Allen; from which judgment Gregory appealed to the circuit court.

This was an action of assumpsit, brought by the defendants in error, against the plaintiffs in error, to recover from them the value of a pair of patent balances, alleged to have been shipped on board the defendant’s steam boat at New Orleans, to be delivered in good order at Boyd’s landing, near Nashville, to said defendants in error, and which the declaration averred never were delivered. The defendants pleaded non assumpsit.

This was an action of assumpsit, brought by Washington against Newnan, upon a quantum meruit, for professional services, rendered by Washington, as an attorney at law; to which the defendant pleaded the general issue. The plaintiff below obtained a verdict in the county court for 315 dollars. A rule, to show cause why a new trial should not be granted him, was obtained by Newnan, which the county court, after argument' had thereon, discharged.

This was an action of trover and conversion, brought by Jamison against Hawkins, to recover the value of a female slave named Philabe, alleged by Jamison to be his property; to which Hawkins pleaded the general issue.

<p>An obligation for 300 dollars, payable in cash notes, on good and solvent men, is not a contract for the payment or delivery of'property within the meaning of the act of 1807, ch. 95, sec. 1.</p> <p>in cases to which the act does apply, no notice, &c. by-the payee to the payor, need be averred in the declaration. The party who wishes to take advantage of its provisions, must rely upon it by plea.</p>

This was a qui tam action, brought in the circuit court of Wilson county, by Bumpass against Greer, to recover the penalty imposed by statute, against “merchants, pedlcrs and hawkers, for retailing merchandise without license.” The declaration demanded 100 dollars (the penalty prescribed,) &c. “For that the said James Greer, did sell and retail articles of merchandise, without first obtaining license according to the act of the general assembly in such case 'made and…

This was an action of detinue, brought by the plain-i.itT Crenshaw, against the defendant, in the circuit court of Williamson county, to recover a female slave named Juno. The defendant pleaded, first, non detinet, upon which issue was joined.

obtained a judgment against Roger B. Sappington, for 31 dollars, and costs of suit, on the 8th day of October, 1824, before a justice of the peace. The execution upon the judgment was staid (as Williams alleges,) by Hickman, and a fieri facias issued on the 11th of January, 1825, founded on said judgment and stay, and was about to be levied on Hickman’s property.

Wetherspoon was indicted in the Williamson county court, at the January sessions, 1826, for obstructing a public road, by laying a fence across it. He pleaded not guilty, was tried, convicted and judgment passed upon him, that he make his fine of five dollars to the state, remove the obstruction to the road, and pay the costs. From this judgment he appealed to the circuit court, was again tried at the August term, 1826, of said court, convicted, and judgment passed upon him.

Crenshaw was indicted at the August term, 1826, of the Williamson circuit court, upon three several indictments : First. For stealing a bay horse from Robert C. Foster. on the 29th of April, 1826, of. the value of 110 dollars. Secondly. For stealing a grey mare of Benjamin Wool-dridge, on the 4th of February, 1826, of the value of 75 dollars. Thirdly.

Dean was indicted in the circuit court of Williamson county, for gaming. The indictment charged, “that Dean and one Henry W. Smith, on the tenth day of May, 1826, at the county of Williamson, with force and arms, did unlawfully encourage and promote a certain unlawful game and match at cards for money; and then and there unlawfully did play for and bet money at the said game and match at cards, contrary, &c.” The indictment does not show in what court it was found.

Johnston was indicted at the October term, 1825, of the Wilson circuit court, for gaming.

<p>A writ of venire facias, directed to the sheriff to summon the jury, returnable to a circuit court, is not void, because it issued without the seal of the court.</p> <p>The courts are bound ex officio to know the officers of government, appointed by the legislature.</p> <p>A temporary suspension of reason, occasioned by the voluntary use of ardent spirits, will not excuse a crime committed in such state.</p>

The defendant was a constable of Williamson county. He was tried on an indictment in the county court for exjoryon? was foun¿ guilty by the jury, and the court adjudg-that he pay a fine of ten dollars, and be removed from 0pjce 0f constable, &c. He prayed an appeal to the circuit court, which was refused by the county court, and the cause was carried to the circuit court by certiorari.

<p>if a prisoner, who has been tried, and found guilty of murder, allege by his counsel, (as a reason why sentence of death should not be pronounced upon him,) that he at that time is a lunatic, and the judge, upon his own inspection, is satisfied the plea is false, he may pronounce the sentence of the law without having a jury empannelIed,to ascertain the fact.</p> <p>But if the court have any doubt, or if it be a caáe of difficulty, they ought to award a venire, returnable instanter, to have the fact ascertained.</p> <p>The clerk of a circuit court may appoint a deputy by parol, and may discharge the duties of his office during term time by such deputy — especially those duties which are of a ministerial nature; but the clerk will be responsible for the acts of his deputy.</p> <p>If the caption to an indictment, state the grand jurors to he “good and laioful men,” it is sufficient without alleging they are freeholders or householders.</p>

At the May term, 1827, of the circuit court of Davidson county, Burrell Cornwell and Moses M‘Clanahan, were indicted for the murder of Owen Hughes.

<p>It is the duty of the attorney general to appeal in all cases, if bethink the state has been injured. v</p> <p>The county court have the power to call upon a constable by rule, to show cause why he should not be removed from office, and, upon due notice, to remove him, on such proof, as affords, in their opiuion, good cause for removal; or they may remove him, upon the facts appearing on the trial of an indictment for extortion, &c.</p> <p>It is not a necessary prerequisite to the removal or suspension of a constable, that he be first convicted upon indictment for extortion, or other misuser of office.</p> <p>The attorney general is entitled to the fees allowed him by law, in all the courts through which a cause may pass, when, by the judgment of the court, the defendant is ordered to pay costs.</p>

On the 30th day of October, 1824, James C. Hays, with George W. Gibbs and Thomas Claiborne, his securities, executed their joint note to the bank of the state of Tennessee at Nashville, payable eighty-eight days after the date thereof.

In Error. This was an action by the endorsee, against Hall, one of the endorsers of a note given by Stump and Cox, to C. Stump, negotiable and payable at the Farmers’ and Mechanics’ Bank at Nashville. The suit was brought in the county court of Davidson, wpere a verdict was rendered for the plaintiff. An exception was taken to the opinion of the court.

In Error. This was an action of debt, upon an arbitration bond.

In Error. M’Gavock sued Hinton, in ejectment, in the Davidson circuit court. M’Gavock’s grant issued in 1808 — the grant to Prunell, under whom Hinton, the defendant below, claimed title, by a regular chain of conveyances, issued In 1793.

In Error. This was a suit brought by Clements, against the defendant, by virtue of the provisions of tbe act of 1821, ch. 14, for a forcible entry and detainer.

<p>A certified copy of a deed, is not competent evidence, unless the absence of the original is satisfactorily accounted for, that being* the best evidence.</p> <p>Whatever is used as a record, or part thereof, in the court above, though it be a private title paper, becomes a portion of the archives of the court, and cannot be thence removed.</p> <p>All private papers, or other documents, used as evidence in the court below, must be copied into the record. The court will not otherwise notice them.</p> <p>Where A sold a portion of his land to B, with warranty, and A and B are jointly sued for their respective portions of the whole tract, the original deeds of both must be produced, or their absence accounted for.</p>

In Error. This was an action of assumpsit, brought by Cunningham against Dickson, in the circuit court of Lincoln county. The facts of the case are these. Henry Allen gave his-two notes, under seal, to Robert and William Dickson, one for 361 dollars, the.other for §156 T\\.

In Error. Stanley brought his action, for slanderous words, in the county court of Perry, against Brit.

This was an action of debt, in the county court, on an obligation as set out in the declaration, for one hundred and twenty-five dollars, without reciting any other matter*, to which a demurrer was filed, and cause shown, that the action should have been covenant, and not debt. Oyer was not craved of the obligation sued upon; it was, therefore, not made a part of the record.* The demurrer was overruled, and judgment for the plaintiff.

This was an action of debt, upon an obligation in these words: “June 23d, 1824, on or before the first of January-next, I promise to pay William Pike, one hundred dollars 'in Tennessee money.” The defendant demurred generally to the declaration^ which was sustained by the circuit court. The cause ivas argued upon the ground, that an action of debt would not lie upon an’instrument of this kind.

The defendant was indicted in the circuit court of Fayette county, for larceny. The cause was removed for trial, by change of venue, to Hardeman county, in which county a trial was had. The prosecutor had lost his pocket book, on the Memphis road; which was found by the defendant, who attempted to pass two of the bank notes, described .in the indictment, and which were in the pocket book, with full knowledge of the owner.

The defendant in error brought this action of ejectment- against the plaintiff in error, in the circuit court of Jefferson county, on the 29th of December, 1817; the cause was tried at the August term, 1815, of Knox circuit court, to which county it had been transferred upon affidavit of the plaintiff, that a fair and impartial trial could not be had in the counties of Jefferson, Sevier, or Cocke.

This was a suit commenced by Nelson against Love, before a justice of the peace for Knox county, on the 9th day of September, 1825. The action was founded on a bill single, executed by Love to John Rodgers, on the 8th of March, 1825, and payable six months after the date thereof, and by said Rodgers assigned to Nelson. The justice rendered judgment against Love for fifty dollars and costs; from which judgment he appealed to the circuit court of said county.

Morrow moved the county court of Knox county, for judgment against Calloway, (the sheriff of said county,) for money collected by him, on two venditioni exponas, or orders of sale, directed to said sheriff by the county court of Knox, and founded upon two executions, issued on judgments rendered by a justice of the peace, on the 16th day of October, 1824, against one Bartholomew, one for one hundred dollars, with interest thereon from the 24th day of February, 1816; and the…

This was an action on the case, brought by Jones against Kearns, for a malicious prosecution of Jones upon a charge of burglary, of which he was acquitted. The suit was originally instituted in the circuit court of Claiborne county, from whence it was removed by defendant by change of venue to the circuit court of Sullivan.

Wilson entered a caveat in the office of the principal, surveyor of the fifth district, to prevent Williams from obtaining a grant from the state of Tennessee for one acre of land, lying in the town of Knoxville, and county of Knox, being lots No. 55 and 56, as designated in the original plan of said town; which acre of land Wilson claimed in fee; and upon which, an entry had been made on the 5th day of July, 1818, by said Williams.

Appeal. This was a writ for a forcible entry and detainer, tried before John Mitchell, John Hickey and. Thomas Branson, esquires, justices of the peace for Marion county.

Rutherford brought an action of debt against Mitchell in the circuit court of Rhea county, upon, the following note— “Three days after date I promise to pay John Rutherford, (agent and attorney in fact of Elizabeth Shaffer, ad-ministratrix of the estate of Jacob Shaffer, deceased, late of Cocke county,) the sum of one hundred and one dollars, t o3o5 (it. being the full amount of any moneys that came to my hands from the estate of John Shaffer, deceased,) value received.

The plaintiff (Porter’s lessee,) brought an action of ejectment, against the defendant, in the circuit court of Hawkins county. The cause was tried at the October term, 1826, of said court, and a verdict and judgment obtained by the defendant; from which an appeal, in the nature of a writ of error, was prayed for, and granted by the court.

Zink recovered a judgment upon motion against Snapp, who was sheriff of Sullivan county, for failing to return in time an execution, which had come into his hands, at the-suit of plaintiff against a certain Elisha Cato. Snapp prosecuted a writ of error to this court, but no errors are assigned upon the record. moved to non pros. the plaintiff’s writ of error.

This was an action of ejectment, brought by the defendant in error, against Isaac Sawyers, Richard Hudnall and George Poff.

Appeal in the nature of a writ of error. . This was an action of assumpsit brought by Jane Rus* sél, administratrix, &c. of John Russel, deceased, against the defendant Gass, who pleaded — 1st, non assumpsit; 2d, á set off of $152 50, and 3d, the statute of limitations. - Upon the first and second issue the jury found for the plaintiff; but upon the last, they found in favor of the defendant.

This was an action of debt, brought by, the defendant in error, as administrator, &c., of Henry Spar, deceased, upon a bill single, for six hundred and twenty dollars, executed to said Spar in his lifetime, by the plaintiff in error, and a certain James Phagan, who is not sued in this action. The writ issued on the 28th of March, 1827.

The defendant was indicted, in the circuit court of Rhea county, for the murder of Isaac West. At the September term of said court for 1826, the cause was called for trial, a jury sworn, and the case submitted to them. The jury were confined together four days, and at the end of that time stated, that all attempts to agree in their verdict, had been unavailing, and they believed it would be impos--'¡ble for them ever to agree.

<p>It is not the duty of the attorney general, to attend to the. prosecution of a popular, or qui tam action ] nor is a case of that sort entitled to the preference over other causes on the docket, as to the time of trying them, which is uniformly extended to criminal prosecutions.</p>

An information, in the nature of a quo warranto, was moved for against the defendant Turk, at the April term of the circuit court for the county of M’Minn, to show by what authority he held the office of clerk of the county court of M’Minn.

Motion before James D. Porter, J., in the Circuit Court, May Term, 1873. Held: that the defendants, as sureties of the collector, were only liable for amount of taxes actually collected by him, and not for taxes not in fact collected. We confess we cannot see any good reason founded in the reasoning of the court in that case, for the distinction.

<p>The court will notice nothing1 as part of a record, except that which is made so by a bill of exceptions — therefore, a memorandum of a motion made, and overruled in the progress of a trial, to which there was no exception, cannot be noticed.</p> <p>This court, in its discretion, will respite the execution of so much of the judgment in-manslaughter, as relates ta burning in the hand and imprisonment, that the party may be enabled to avail himself of the constitutional right of soliciting* a pardon.</p>

<p>A tax collector who has received the tax hooks without the certificate of the County Court clerk, is liable for taxes which he had collected or failed to collect.</p>

<p>An appeal, in the nature of a writ of error, will lie to the supreme court, from the decree of the circuit court, dismissing the complainant’s bill.</p>

The bill charged, that Brittain Goodwin, departed this life in 1811, having, on the 17th of October, 1810, made his last will and testament; in which is the following bequest, “I give and bequeath unto my son Jesse Goodwin, my young sorrel gelding and one feather bed, to he delivered to him by my executrix, after my decease.

This wasabill in equity, filed by James White, a creditor and junior mortgagee of John Dougherty, seeking the recovery of his debt from the defendants, or the satisfaction of his debt, out of the property mortgaged, or the postponement of the prior mortgage executed by said John Dougherty to Thomas Miller and Archibald Woods and Wm. Woods, to secure a debt due them from John and George Dough®*ty. The circumstances of the case are as follows.

<p>A tax collector’s bond, reciting an election for two years, and with condition “ to pay over all taxes by him collected, or which ought to be by him collected, according to law,” binds his sureties for his whole term of office; not simply for the year in which it is given.</p> <p>The act of 1870, ch. 28, s. 2, Private acts, p. 260, giving further time to tax collectors, did not have the effect to relieve their sureties.</p>

Judgment on motion. Error to the Circuit Court, January Term, 1873. John B. Hoyl, J. Trewhitt & Sharp for .plaintiffs in error, said: The judgment of Circuit Court is erroneous, and should be reversed for the following reasons: 1.

Ejectment. This was an action of ejectment, commenced by the lessor of the plaintiff against the defendant.

Judgment by motion at August Term, 1872, Circuit Court. Gid. B. Black, J. The District Attorney below produces the certificate of the Comptroller, showing the amount due $1,089.06. Defendants plead the payment of this sum.

The bill in this case was filed by the complainant, Patton, against the defendant, for the purpose of divesting the legal title to ten feet of ground, lying on the public square in the town of Clarksville, out of the defendant, and vesting it in the complainant, by virtue of a parol contract for the sale of said ten feet of ground, and possession delivered'in part performance of the same.

J. W. McHenry, Sp. J. This was a proceeding commenced in the Circuit Court of Davidson county, by the State against Robt. Held: Code, 653. 2. That the tax collector was prevented by sickness, or other unavoidable accident: Code, 654. The Code also prescribes the mode in which each of these credits shall be proved; the first by the certificate of the presiding judge and clerk, that no court was held: Code, 653. Observe, no parol proof.

This was an appeal from the decree of the chancellor for the fourth circuit, by the defendants, against whom a decree had been entered in the court below. The bill was filed in the court of chancery, in August, 1819. The case was as follows: In the year 1807, Daniel Wheaton executed three promissory notes to Edward Blake, payable a few months afterwards. Daniel Wheaton died in 1804, leaving the defendants his heirs at law.

Cocke and Jack sued R. M’Ginnis in assumpsit as administrator of L. Stone, and declared for money had and received by Stone in bis lifetime to their use. The defendant pleaded,first, non-assumsit; secondly, that the intestate did not undertake and promise within three. years, and thirdly, fully administered.

This was an original bill, filed by Overton against the defendants.

<p>The facts of this cause are stated in the opinion of the court — Judge Whyte absent,</p>

<p>Writ of error to the Circuit Court, to reverse a judgment of March Term, 1873. John B. Hoyl, J.</p> <p>cited Chairman v. Saioyers, 1 Thompson’s Cases, 55; Code, 3597, 3583n., 912a.</p>

The bill states, that on the 17th day of September, 1815, the complainant sold to defendant a tract of land, purporting to be on, or near the Caney fork of Cumberland river, containing five thousand acres, more or less, that he ex* ecuted to defendant a deed for the same, and that the defendant executed to complainant his notes for the purchase money.

Motion in the Circuit Court for judgment against defendant and his sureties as tax collector. Motion dismissed on the merits, April Term, 1874. E. T. Hall, J. S. P. Now an, for the plaintiff, insisted that the proceeding in the County Court on the 5th of November, 1866, effected the resignation of Clai’k, and the election of Edmondson, and that the action taken at the January Term, 1867, was needless.

In March, 1819, John Stump executed to the Nashville Bank, the State Bank of Tennessee, and the Farmers and Mechanics Bank, a deed of mortgage for certain property, situated in different counties in this state; and among the rest, a house and lot in Springfield, in Robertson county, ^ property now in controversy. This was the joint property of Stump and Cox, and in July, 1819, Cox made a deed of confirmation to the banks for said property.

<p>1. Beeease of Sureties. By giving time to Collector. Special act.</p> <p>A special act of the Legislature, giving time to a particular tax collector to collect and account for the taxes, operates to release his sureties.</p> <p>2. Same. Jurisdiction in equity.</p> <p>The exemption of the State from suit not being insisted on in this case, it was held that, the objection, that the proper remedy was at law, was not well taken.</p>

In Error. Reputation or hearsay is admissible evidence of descent from Indian ancestors, and may be used as a part of the chain of proof to establish freedom. [See Cooke, 142; 1 Tenn. 393.] Reputation or hearsay, from the necessity of the case, is admissible evidence to establish a ' right to freedom. [Ace.

<p>A owes B five thousand dollars, and when it becomes due, it is agreed that A shall endorse notes on different individuals not yet due,to Bin payment thereof, and deduct four per cent, a month for the time the notes had to run, and also procure another endorser, which was accordingly done; held that this transaction was usurious, and that the subsequent endorser could take advantage of it.</p>

<p>A deed from M to G purporting to convey the land in dispute to the tenant in possession, though void and forming no connection, either legal or equitable, with the grant, and accompanied with seven years’ peaceable and uninterrupted possession, is a bar to the recovery of the plaintiff in ejectment, under the act of 1797, ch. 43, sec. 4.</p>

In Error. The judgment of a County Court, being a court of record, is a lien upon the lands of the judgment debtor for one year after its rendition, whether the lands are situated in the county where the judgment was obtained or not; and a sale under it, at any time within the twelve months, will override all intermediate sales. [Acc. Miller v. Estill, 8 Y. 459; Porter v. Earthman, 4 Y. 372, citing this case. So, of personalty, from teste of execution, wherever found.

In Error. In all oases where a specified number of justices of the peace is required to be present for any given purpose, the record should show that such number constituted the Court, otherwise any order or judgment of the Court will be void. [Acc.

In Error. A witness may sue a party to a suit, who summoned him, for the attendance money allowed him by law, although he lives in the same county in which the suit is pending, and the cause is not finally determined. [This is recognized as the settled rule in Carren v. Breed, 2 Cold. 467, citing this case.] The act of Assembly, providing that the costs must go with the cause, does not mean that the witness must await its final termination, before he can claim for his…

In Error. An appeal will lie to the Circuit Court, from the judgment of a County Court refusing to appoint a certain person administrator, &e. where his appointment is contested. If one of the distributees of an intestate apply for administration, and the application is opposed by the widow and other of the distributees, but neither of the latter apply to administer, the Court ought to appoint the applicant.

In Error. The judgment for costs of suit is not now, as formerly, in numero, but for costs generally, to be taxed by the clerk; and, as the taxation is a matter in which he has an interest, the statutes leave him no discretion, but wisely prescribe limits for his government on every side. It is a settled rule of law, that, in all cases, judgment shall precede execution; and where there is a liability depending upon a contingency, a sci.fa. is necessary.

In Error. In an action of covenant upon a warranty of title to land, the plaintiff must aver and prove an eviction, by elder and better title, before the commencement of his action against the… Held: at the time of sale, by title paramount, and the possessor holds o.ut the purchaser, that is an eviction. Randolph v. Meek, M. & Y. 58.] [48] This was an action of covenant, brought by Harshea against Fer-riss, in the Circuit Court for Rutherford County.

<p>The adverse possession of a slave so long as to bar any action which could he brought against the possessor, vests in him an absolute right of property.</p>

In Error. 1 The plea of “ non infregit conneniionem ” to an action of covenant upon a warranty of title to land is bad in demurrer. 1 To sustain such an action, all the authorities concur that you… Held: at the time of sale, by title paramount, and the possessor holds out the purchaser, that is an eviction. [Acc.

As a general rule, a party, to be concluded by judicial proceedings, must baye notice. [Acc. Durham v. United States, 4 Hay. 64.] But there are cases, growing out of special statutes, silent in their provisions as to notice, which constitute exceptions to the general rule. [Acc.

Appeal. General or directory calls yield to special or locative calls, even where the former call for natural objects, and the latter only for course and distance. [Acc.

<p>The revenue act of 1873, ch. 118, s. 80, repeals all former laws for the sale of lands' for taxes, and requires all sales to be made in the manner prescribed in that act.</p> <p>See Cason v. Newsom, post p. 446.</p>

In Error. If the charge of the judge below be not excepted to, and spread upon the record, it will be presumed correct. To show a waiver of demand, and notice by an indorser, clear and unequivocal evidence is required of such waiver. The rule that in some cases, where justice has been done between the parties, the Court will not grant a new trial (although the verdict be against evidence) does not apply to indorsement cases, or cases founded on commercial law. [Acc.

An appeal, in the nature of a writ of error, will not lie, unless there be a final judgment in the court below. [Acc.

<p>Appeal from the decision of the First Circuit Court, September Term, 1873. C. W. Heiskell, J.</p>

An attorney-at-law in this State may sue for and recover a reasonable compensation for professional services rendered by him to his client, at the request of the latter. [Acc. Bright v. Taylor, 4 Sn. 159; Cantrell v. Chism, 5 Sn. 116.] This was an action of assumpsit brought by Washington against New-nan upon a quantum meruit, .for professional services rendered by Washington, as an attorney at law; to which the defendant pleaded the general issue.

<p>Appeal from the decision of the Chancery Court, . Livingston, Ch. - Term 1873.</p> <p>cited Mollee v. McLemore, ante p. 440.</p>

The purchaser at an execution sale, injustice as well as upon principles of public policy, is regarded with a favorable eye, and is the legal owner of the property sold under the execution, by virtue of the deed or bill of sale from the sheriff. [Acc. Lowry v. McGhee, 8 Y. 24?, citing this case; Russellv.

<p>The act of 1872, c. 3, for the sale of lands bid in by the State for taxes, is a valid act, and proceedings may be maintained to sell the lands for taxes.</p>

In Error. An obligation for $ 300, payable in cash notes, on good and solvent men, is not a contract for the payment or delivery of property within the meaning of the Act of 1807, ch. 96, § 1. [Acc. 9 Y. 27 and 270.] * In cases to which the Act does apply, no notice, &c. by the payee to the payor need be averred in the declaration. The party who wishes to take advantage of its provisions must rely upon it by plea. [Acc.

The plaintiff in a penal action must aver every fact necessary to sustain the action, and •without being informed of which, the court cannot judge whether he has cause of action or not.

Appeal by plaintiffs from tbe judgment of tbe Circuit Court at its January Term, 1872, on an agreed case before J. C. Guild, J. The agreed case was as follows: 1. That the plaintiff is a wholesale druggist, doing business at Nashville, Tennessee, and has been during the time for which the tax in question was assessed and collected. 2.

This Act of 1801, 26 , 2 (Code 1161) against pretended loans of property, could not have intended to bar and destroy the vested rights of citizens of other States, fairly acquired according to the law of the State where the contract was made. [Acc.

The stay of execution upon a. justice’s judgment is in the nature of a confession of judgment; and to bind the stayer, under verbal authority, the justice must enter the acknowledgment in the presence of the stayer, and the record of the judgment must also be present. [Cited approvingly in Reams v. M’Nail, 9 Hum. 544; Caperton v. Gray, 4 Y. 563; Barnes v. Dick, 9 Y. 433.

It does not follow from the provisions of the 21st section of the Bill of Rights, in relation to the taking of private property for public use, that the owner may occupy and enjoy the exclusive use of property so taken, until compensation is made; nor is it a condition precedent that the government shall pay before taking possession. [Acc.

A conviction, judgment, and execution upon one indictment for a felony not capital is a bar to all other indictments for felonies not capital, committed previous to such conviction, judgment, and execution. [Changed by the Code 5274.] CREnshaw was indicted at the August term, 1826, of the Williamson Circuit Court, upon three several indictments : —■ First, for stealing a bay horse from Robert C. Foster, [123] on the 29th of April, 1826, of the value of $110.

In an indictment for gaming, the offence charged was “that the defendant unlawfully played and bet at cards, for money ”; held sufficiently certain, without specifying the particular game of cards at which he played, or averring any specified amount of money bet. [Acc.

If an indictment charge that the defendant unlawfully bet and played at a game of cards called faro, for money, and the proof is that he bet bank-notes, such proof will not be sufficient to maintain the indictment. [Acc. Garner v. State, 6 Y. 162, and McAuly t>. State, 7 Y. 527, citing this case. But see Graham v. State, 5 Hum. 40.] [129] Johnston was indicted at the October term, 1825, of the Wilson Circuit Court, for gaming.

No seal is, in practice, used or required to process issuing from either the County or Circuit Court; nor is it required to the order or venire facias directing the sheriff to summon a jury- The defendant has a right to a copy of the panel of the jury, and, if the indictment be not found by competent jurors, exception may be taken before the defendant pleads not guilty; and by plea, if the matter does not appear of record. [See Gowrance v. State, 4 Y. 146; ahd State v.…

The State, by the intervention of its officer, the Attorney-General, is entitled to an appeal in nature of writ of error, in oases of misdemeanor. [Ace. Held: and that the said defendant depart hence without day.” From the judgment of the Circuit Court the Attorney-General prayed an appeal in the nature of a writ of error to this Court.

<p>1..Tax on Merchants. Sales to non-residents. The Constitution, Art. 2, s. 28, exempts merchants from any tax on capital used in the purchase of goods sold to non-residents and sent beyond the State.</p> <p>2. Same. Tax, how computed. Under this provision, the merchant is entitled to the exemption on a percentage of his greatest stock of goods, proportioned to the percentage of his annual sales beyond the State, compared with his gross annual sales.</p>

If a prisoner who has been tried and found' guilty of murder allege by his counsel (as a reason why sentence of death should not be pronounced upon .him) that he at that time is a lunatic, and the judge, upon his own inspection, is satisfied the plea is false, he may pronounce the sentence of the law without having a jury empanelled to ascertain the fact.

It is sufficient that the caption of an indictment state that the grand jurors were good and lawful men. If they be such, they must be freeholders and householders. [Acc. M. & Y. 143¡ 4 Y. 141,146; 10 Y. 524; 2 Cold, 197, all citing this case.] It is not even necessary that the qualifications of jurors should appear in proceedings in the superior courts.

<p>1. Privilege Tax. Increase of. The act of July 7th, 1870, o. 74, s. 4, increasing by fifty per cent, the tax on privileges is valid.</p> <p>2. Constitutional Law. Legislative bill. Subject and, title. Art 2, s. 17 of the Constitution, prohibiting laws from being passed which embrace more than one subject, that subject to be expressed in the title, is mandatory and prohibitory, and not directory.</p> <p>3. Same. Subject. A law embracing taxation on property and privileges, does not violate the provision by embracing two subjects.</p> <p>4. Same. Title. A title, purporting that an act is to impose a tax on property, is sufficient to support a law embracing taxes on privileges as well as on property.</p>

The attorney for the State has the right to prosecute an appeal in the nature of a writ of error, from the judgment of the Circuit Court, setting aside the order of the County Court removing the defendant in error from office, as constable, for extortion, and restoring him to his office.

The law presumes all persons who get accommodations from a hank cognizant of all the provisions of its charter, which provisions fix the law of the contract. A party, to entitle himself to a renewal of his note in the Bank of the State, must tender the interest on the sum to be renewed, in advance; if he do not, judgment may rightly he confessed, on the power of attorney which accompanies the note.

In Error. Where the party entitled to notice of the dishonor of negotiable paper resides in the same city, or place, as the party bound to give the notice, the notice must be given personally; and those are considered of the same place who transact business through the same post-office. [Acc. Bank u. Bennet, 1 Y. 168, and F. & M. Bank v. Battle, 4 Hum. 91, citing this case.

Appeal by the City of Memphis from the judgment of the Second Circuit Court, on an agreed case, September Term, 1871. Ikying Halsey, J. The defendants are arrested and fined in two cases, for running drays or wagons in the city of Memphis without licenses.

In Error. To debt upon an award, made under a submission of the matters in relation to the amount of compensation due from the defendant to the plaintiff, “ and all other matters in dispute between them,” the defendant may put in a plea of set-off of demands in existence previous to and at the date of the award, “ which were not acted upon or regarded by the arbitrators,” aud, upon issues joined, upon a replication to this plea of non-assumpsit, and non-assumpsit within…

In Error. To overreach an elder grant, founded upon a junior entry, the calls of the elder entry must have been notorious at the date of the junior entry. [Cooke, 137.] That the beginning corner of the elder entry was notorious at the date of the grant, founded upon the junior entry, will not deprive the latter of the legal advantage which is based upon an elder grant. [194] M’Gavoce sued Hinton, in ejectment, in the Davidson Circuit Court.

In Error. Twenty jurora are to be summoned in proceedings before justices of the peace, for forcible entries and detainers; but twelve, or any number between tkatVnd twenty, will be sufficient to try the issue.

Ejectment. Copies of deeds have been admitted in evidence, without accounting for the absence of the originals, only in those oases where the warrantor, not being sued, was supposed to keep his title-papers, that he might be ready to make defence with them, when notified by the warrantee of the suit against him. [See Tillery v. Simmons, 1 Tenn. 209; Cooke ». Hunter, 2 Tenn. 113.

In Error. There is no such magic in names and numbers as that they should close the eyes of the Court upon what the Court must clearly see to be the fact, from an inspection of the bill of exceptions.

<p>Appeal from the judgment of the Circuit Court of Hamilton county, November Term, 1872. John B. Hoyle, J.</p> <p>1. The ' only material question in the case is, whether the plaintiffs in error are liable for the tax assessed against them as real estate brokers or agents for the year 1871?</p> <p>The plaintiffs insist, that the charge of the court is erroneous in this; the court instructed the jury that a declared intention on the part of the plaintiffs in error, and preparations to act, was such “ presuming to ■ act as such,” as renders them liable to the tax. Such, we think, is not the law. Such persons are not liable unless it appear the party or parties carried on the business as a regular avocation, and the court should have instructed the jury: See Steger’s Statutes, sec. 350, sub-sec. 4, and sec. 553a, sub-secs. 6 and 7. By these sections and sub-sections, it will be seen that the business must be regularly followed as the avocation ; and the tax is fifty dollars — and one-half of one per cent, on gross sales or rents. This last provision carries with it evidence that, to charge the party, he must actually have done business: See sec. 553a, and sub-sec. 7.</p> <p>There is no distress warrant appearing in the record, and the bill of exceptions shows it contains all the evidence in the cause. Nor is there anything in the record to authorize a verdict for the amount found by the jury.</p> <p>3. There is no evidence in the record showing that any privilege tax was ever assessed by the County Court of Hamilton county, so as to enable the court and jury to find any verdict for the county’s part, or to determine the amount for which the defendants are liable, if liable at all.</p> <p>This case was presented to the court and jury on the sole question whether or not the plaintiff in error, in conjunction with the other parties mentioned, was or had been exercising the privilege, without having paid the tax, and obtained the license?</p> <p>Section 704 of the Code, provides that if any person presume to exercise any privilege, without paying the tax and obtaining the license prescribed by law, the clerk shall issue a distress warrant to the sheriff, or any constable, commanding him. to levy, in a case of a privilege, a tax double thé highest tax imposed upon any privilege, etc. Sec. 550, defining what are privileges, taxable and not to be pursued without license, lays down as such privileges, sub-sec. 4, “The business of brokers of real estate carried on as a regular avocation.”</p> <p>Section 553a, sub-'secs. 7 and 8, makes the tax on brokers of real estate, $50 for State purposes: sub-sec. 71 of the same section, increases the tax on all privileges 50 per cent., making the State tax on the privilege, $75.00; the county tax for county purposes, $37.50; school tax, $9.37; clerk’s fee, $1.00; making the tax, without clerk’s fee, $120.87, which being doubled makes $243.75, the amount of the distress warrant.</p> <p>However, the amount of the tax, or the assessment by the County Court, is not put in issue in this proceeding. The sole question being, whether the fact was that plaintiffs in error had been exercising the business. It is respectfully insisted, that the portion of the charge of the court below set out in the bill of exceptions is correct. The plaintiffs in error had opened an office, put up a sign, had printed and circulated business cards; had deeds prepared with their card on them, and were soliciting business generally, and in all the ways known to such brokers. The Circuit Judge charged .that these acts made them liable to the tax. And we think his Honor was right. The language of the statute is, “ If any person presume to exercise the privilege, etc.”</p> <p>Only a portion of the charge is set out in the bill of exceptions, and even if there be error in the portion so set out, under a well settled rule, this Court will hold or presume that the remainder of the charge is correct, and that a charge applicable to the facts of this case was given to the jury. That being so, the Court will presume that the court charged the jury, that if the defendants below were actually engaged in the business of real estate brokers, that they were liable to the tax, etc., in addition to the charge as set out in the bill of exceptions.</p> <p>The testimony of J. H. Hardie shows that the defendants were engaged in the business. Many of the deeds they had prepared, with their advertisements on them, had been filled up, and passed through his office for acknowledgement; some of those blank deeds filled in the hand-writing of the. plaintiff in error. The witness further proves that he demanded the tax from the plaintiff in error, and he did not then seek to avoid liability, on the ground that he had no business, but because of the unconstitutionality of the act imposing the tax. Upon the whole, this was a question of fact, presented to a jury under a fair charge of the law, as the Court are bound to presume, and this court will not interfere with the finding of the jury. The plaintiff in error would have been bound to have obtained license before he could have done any business.</p>

<p>1. Pnrvirjs&E. Constitutional sense of.</p> <p>The word “privilege” in the Constitution of 18V0, is used in the same sense as in the Constitution of 1834, as ascertained by judicial construction. .</p> <p>2. Same. Heal estate broker.</p> <p>The occupation of a real estate broker is subject, under the Constitution to taxation as a privilege.</p>

<p>Appeal by plaintiff from the judgment of the Circuit Court, January Term. Jas. D. Porter, J.</p>

<p>Appeal by plaintiff from the judgment of tbe Circuit Court, June Term, 1875, on an agreed case. E. C. Gillenwaters, J.</p> <p>This is an agreed case to determine whether the act of 1875, c. 102, ss. 1, 2 and 6, requiring delinquent tax payers to pay interest from the time the tax fell due, is valid.</p> <p>The Comptroller under the law, upon advice of the Attorney-General, fixed upon the first of November last, as the time from which the collectors are to compute interest.</p> <p>The act provides for indulgence, and the forgiving of the penalties on delinquent tax payers for the year 1874, and substitutes interest from the time the tax fell due.</p> <p>The act is. not of the most intelligible character, but the action of the Comptroller reaches as fair a result as practicable. He does not think he has hit upon the precise day when the tax fell due, but he has fixed a period at which the tax payers ought reasonably to be expected to pay, giving time to the tax collector to advertise, and attend in the various districts of the county. A logical construction of the subject would date back the tax to the very day when the collector first received his tax book. From that moment he is authorized to demand the taxes, and of course they are then due. But the Comptroller has preferred to err on the side of leniency and equality, and not to have a special inquiry in each county whether the tax collectors received their books at a particular time. Equality in the payment of taxes involves equality in point of time, as well as in amount.</p> <p>The Comptroller’s circular on this subject has been issued. for some time, and considerable amounts of taxes have been collected under it, .and unless gross departure from the law is found, his ruling ought to be supported. Since, otherwise, those who have paid honestly the interest under that rule, must be subjected to the inequality which results from a change of rule, or will have to bring suits to recover it back. That is to say, if this act is equivocal and its construction doubtful, the act of the constitutional accounting officer, with power to prescribe uniform rules as to the collection of revenue: see Code, 207, ¶~ 15, ought to be maintained.</p> <p>Such a rule is recognized by the Supreme Court of the United States, in regard to the decisions of its officers, and I presume it is found in the practice of every civilized country on the globe. Probably in everyone, the acts of the highest executive officers of a state, are regarded by their courts with respect due to the act of a co-ordinate department, and the judges place themselves as far as practicable in accord with them. "We must remember that our Comptroller corresponds as nearly in the scale of importance, to the Chancellor of the English Exchequer as to any other officer, or to the United States Secretary of the Treasury, and surely an officer of such grade is entitled to high consideration, and the policy of maintaining his acts and his authority in his proper sphere, is a matter worthy of the attention of the courts.</p> <p>The arguments which I have heard out of doors in regard to this act are these: that this act requiring interest to be paid is ' unconstitutional. I maintain that every government has the right to affix a penalty to the breach of its revenue laws. But this case stands in a peculiar attitude. The act of 1873, denounced a penalty of 10 per cent, against all persons failing to pay their taxes, and another penalty of 12 per cent, against others failing to pay at a later day.</p> <p>The right to impose such penalties has been questioned in a case now pending in this Court, but 1 am too obtuse to discover any reasonable ground for the doubt. No man is by the law bound to pay any penalty — any more than the penalty for swearing or sabbath-breaking, or assault and battery. He has only to pay his taxes when due. If he fails, he then, wilfully disobeys the law and incurs the penalty, just as he does by assault and battery. Why should we doubt this power to compel equality of taxation, when everything in our policy requires equality and enjoins it. Why shall A pay his tax in November, 1874, and B pay what is due at the same time, in the next July, without incurring any additional liability whatever? The State receives and uses A?s money; for' the want of B’s, she borrows money at 10 per cent, interest. She also, because of the same failure, issues her warrant to her creditors, and they sell them at 10 per cent, discount. All citizens must contribute to make up that 10 per cent, interest, but the creditor must lose his 10 .per cent, which B’s prompt payment would save. Now can it be possible that B has been so guarded and favored by our institutions, that he can not be saddled with this loss, instead of the prompt paying citizen or the just creditor of the State ? Where is the constitutional provision which prohibits the State from applying this spur — from doing this measure of justice to the prompt paying citizen, and from administering this justice to the dilatory and the treasury defrauding citizen.</p> <p>Summary methods on the subject of revenue have from time immemorial existed in all countries for the enforcement of revenue, and it is clearly due process whenever there exists any remedy for the abuse 'of the summary proceeding: Murray v. Hoboken Land and Improvement Co., 18 How., 282; McCarrol v. Weeks, 5 Hay., 255.</p> <p>Then the penalty being established, it follows that it must be paid or forgiven by the State, or a compensation made. Here the State proposes to forgive the penalty, and to collect the interest instead. Probably it will not be contended that a lesser penalty can not be collected in lieu of a greater. If it should be, it certainly will not be a difficulty in the way of a judicial determination of the question. I can then see no difficulty whatever in saying or holding that the penalty of 10 per cent, was valid, and that á penalty of 3 per cent, in lieu is equally valid, though not certainly equally just. The people felt that equality of taxation was a right, important enough to be guarded by a constitutional .provision. Surely the reasonable means which the Legislature may adopt in furtherance of that policy are worthy of being sustained by the courts and people. What does it avail us if we have our taxes equally assessed, if one is at liberty to pay and another not. A and B are each assessed to pay $100, and the Constitution requires this. But A pays, B does not. The consequence is, that the next year, A is assessed again to pay B;s deficit, and has .to pay, say $105. B is also assessed to pay $105, and he fails as before. So A is again assessed to pay that deficit at $110. B is also in like manner assessed. Now, under this idea that the Constitution only looks to the equal assessment. A pays $315, while B pays nothing.</p> <p>The Constitution pre-supposed equality of collection, which means that each would be compelled to pay, and did not mean that there should be any inequality allowed. Now the law requires A and B to pay at the same time. A pays his when the law requires, say first November. B says I can make 10 per cent, on my money, and pays in July. His $100 has yielded him $5, while A’s has saved the State $5, or has saved some creditor of the State $10. B’s failure has cost the State $5 in the way of interest, or some hard worked employe of the State has lost $10 by his wilful and deliberate breach of duty. Yet it is said that the Constitution which enjoins equality of assessment, prohibits the Legislature from requiring B to make up this loss, or to prevent the recurrence of this inequality by punishing B for his delinquency.</p>

In Error. An imperfect statement of a good canse of action will be aided by verdict. In slander for words not actionable in themselves, a colloquium is necessary to point them to the object to which they relate; but it is not indispensable that the colloquium should precede the statement of the words. [222] Stanley brought his action, fpr slanderous words, in the County Court of Perry, against Brit.

Debt will lie on an obligation payable in Tennessee money. [Ace. Gift v. Hall, 1 Hum. 480.] This was an action of debt upon an obligation in these words : “ June 23d, 1824. On or before the first of January next, I promise to pay William Pike one hundred dollars in Tennessee money.” The defendant demurred generally to the declaration, which was sustained by the Circuit Court.

To show a variance between the obligation declared on and the one produced on the trial, oyer thereof must be craved, the instrument set out, and thereby made part of the record. The Court will not notice the clerk’s recitab'of a note not made a part of the record by the pleadings. [Ace. Anderson ».

•To constitute larceny, there must be a trespass completed at the time of taking. [Acc. Hite v. State, 9 Y. 205; Pel ter v. State, 9 Y. 406; Lawrence v. State, 1 Hum. 231; Pritchett v. State, 2 Sn. 288, all citing this case.

Indulgent to the weakness of our nature, as a matter of public policy, to promote the repose of society, and to put down litigation, courts intend the existen.ee of facts, when it is unreasonable to expect evidence of them.

Days of grace are allowed upon bills single, such instruments having been made negotiable, and put upon the same footing with bills of exchange and promissory notes by the Act of 1786, 4 (Code 1957). An action cannot, therefore, be sustained against the maker of such instrument until after the expiration of three days from the time at which upon its face it purports to be due.

.A justice of tlie peace has no jurisdiction in a case where the note or settled account, with the interest thereon, amounts to more than one hundred dollars. c[Changed by statute, Code 4123.] Where the want of jurisdiction appears upon the face of the justice’s proceedings, the judgment is void; as, for example, where the judgment is for a sum within the justice’s juris* diction, but with interest for several years back, which, when added to the principal, makes the amount…

<p>The tax on lawyers imposed by the act of 1867-8, c. 4, s. 19, is invalid.</p>

By the principles of the common law governing the courts, both of law and equity, a plaintiff shall not have his cause turned out of court for want of security for costs, or from his inability to give it, if he is personally resident within the jurisdiction of the Court, and amenable to its process. [Citing Tidd’s Pr. 476-479; 1 Str*. 681, 697, 705; Cowp. 24; 1 Term, 491; 2 Br. C. C. 609; 3 Br.

All lands which might escheat after the Cession Act would, of course, escheat to the sovereign power, the government of the United States, until the formation of our Constitution, and afterwards to the State; and were not subject to entry by North Carolina military warrants.

Appeal. The Act of 1821, ch. 4, providing for the removal of oases of forcible entry and detainer, by certiorari, from the cognizance of a justice of the peace to the Circuit Court, authorizes a re-trial of the facts in said court by a jury. [See 5 Y. 148, citing this case.] A party to be guilty of forcible entry and detainer, under the second sction of said Act, must enter into possession of the premises, when actually adversely holden. [See Meigs, 14, note; Code 3342.] To…

A contract may be declared on, either in the words in which it was made, or according to its legal effect. where a note is payable to the plaintiff, as the agent and 'attorney of another, he may sustain ' an action on the note in his own name, without describing himself as agent or attorney, &c. [Acc.

It is the duty of the appellant, and not of the clerk of the court in which the cause was tried, to transmit the record to the Supreme Court. [Acc. Grafts v. Stockton, 8 Y. 164.] The plaintiff (Porter’s Lessee) brought an action of ejectment against the defendant, in the Circuit Court of Hawkins County.

Errors must be assigned on or before the first day of the term to which the writ of error is returnable, or a nonpros, will be entered. [Changed by 1820. 2, 9, and 1829, 103. Code 8160.] Zink recovered a judgment upon motion against Snapp, who was sheriff of Sullivan County, for failing to return in time an execution which had come into his hands at the suit of plaintiff against a certain Elisha Cato.

The application to remove a cause from the State to the Federal court, under the Act of Congress of 1789, 20, 12, is in time if made at the term at which the applicant entered his appearance. Nor is it necessary that the petition should contain an offer of the security prescribed by the Act, nor that the security should be given until it shall have been judicially decided that the applicant is entitled to the removal.

Appeal in the nature of a Writ of Error. The Statute of Limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of which may be lost. It is not, then, sufficient to take the case out of the act, that the claim should be acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due. [Acc.

A word, without which the sentence to which it belongs is nonsense, will be supplied by in-tendment. [Citing King v. Tippet, 1 Term, 233; King v. May, Doug. 183. And see Editor’s note to White v. Hembree, 1 Tenn. 535.] Thus, in a notice by a surety to the creditor, under 1801, 18 (Code 1968-1972), requiring him to bring suit against the principal in thirty, the word “ days ” will be supplied.

The proper interpretation of the constitutional and common-law provision, “ that no person shall, for the same offence, be twice put in jeopardy of life or limb,” admits of doubt. The weight of authority is, that a court, in the exercise of a sound discretion, may discharge . a jury, even in a capital case, and that the defendant may be again tried. [Qualified by Mahala ». State, 10 Y. 641, which is itself commented on doubtingly in Morgan ».

It is not the duty of the Attorney-General to attend to the prosecution of a popular or gui tam action; nor is a case of that sort entitled to the preference over other causes on the docket, as to the time of trying them, which is uniformly extended to criminal prosecutions.

A constitution or fundamental law is brief in its provisions, and confined to the annunciation of first principles; it tells us that an act is to be done, or result produced, but often pretends not to particularize the time or manner.

The Court will notice nothing as part of a record, except that which is made so by a bill 'of exceptions; therefore a memorandum of a motion made and overruled in the progress of a trial, to which there was no exception, cannot be noticed.

An appeal in the nature of a writ of error will lie to the Supreme Court from the decree of the Circuit Court, dismissing the complainant’s bill. [See Code 3172.]

An unlimited power of disposition given by will carries the absolute interest in the property. [Seows, if power dependent on contingency. Pillow v. Rye, 1 Sw. 186.] Therefore, an executory limitation by will, after an unlimited power of disposal given to the first taker, is nugatory. [Acc. Bean v. Myers, 1 Cold. 228; Sevier v. Brown, 2 Sw. 116; Williams ®.

If the defendant have the first claim to security by mortgage and pledge on certain property, and complainant have a second mortgage or security on the same property, of which defendant had notice, and if there were no other person having a better claim than complainant, defendant would hold the excess, beyond the satisfaction of his own claim, as a trustee for the benefit of complainant, and a court of equity would hold him accountable for a disposition of that excess to…

Ejectment. A widow is, under 1784, 22, 8 (Code 2406), dowable of lands conveyed by the husband to his son, without consideration, although the ostensible object were to defeat creditors, if, in fact, it were also intended to defraud the widow of her dower. [See Brewer v. Connell, 11 Hum. 500; Rowland v. Rowland, 2 Sn. 643.] Üucei'e, whether every conveyance by the husband, founded merely upon meritorious consideration, is not as much fraudulent and void as against the widow,…

Courts of equity are equally bound with courts of law by a statute. [Acc. Smith v. Hickman, Cooke, 330, and since followed.] And where the Legislature makes a general provision of law by statute, without making any exceptions, the courts of law and equity can make none. [Acc.

A judgment obtained against a personal representative is not a lien upon lands in the hands of the heir.

When an -action at law can be sustained for a debt or demand due by simple contract, the Act of Limitations maybe pleaded in bar of it; notwithstanding a court of equity may have concurrent jurisdiction in the case, and that forum is resorted to. [Acc. 3 Y. 231; 7 Y. 233; 4 Cold. 467, citing this case.

The irregularity of an order of sale, whioh would have been sufficient to quash it on motion, is cured, under 1801, 6, 64 (Code 3107), by the suing out of an injunction. Thus, an execution issued and levied upon land more than a year after the rendition of the judgment is irregular or voidable, but not void, and filing a bill of injunction cures the irregularity. [Acc.

<p>Petition to Guild, J., for writs of certiorari and supersedeas to stay the collection of a tax and set aside the assessment. Application heard in open court, June Term, 1874, on petitions, answers and affidavits, and granted, and at the same time the petition dismissed. Appeal by petitioners.</p> <p>1. Certiorari is the remedy: Code, 3124, 3123; Dillon on Municipal Cor., s. 739, notes; Bob v. State, 2 Yerg., 176; 1 Sneed, 453; Mayor and Aldermen v. Pearl, 11 Hum., 249; Wilson v. Lowe, 7 Col., 155; 2 Hum., 30; Peck, 362; Haywood, 54, 69; 6 Col., 340, 420; 2 Col., 20; 11 Hum., 252; Martin & Yer., 168; 7 Col., 153; Dillon on Municipal Cor., 692; 9 American Reports, 591; Comm. L. Rep., No. 10, 174; Smith v. Pen & Peagan, Knoxville, September Term, 1874.</p> <p>2. So perfect is this remedy, that equity will not interfere, unless special grounds of equitable jurisdiction exist: Fnmng v. St. Louis, 5 Wallace; Dor os v. Chicago, 11 Wallace, 109; LlannerinMe v. Georgetown, 15 Wallace, 547.</p> <p>3. The collection of illegal taxes can be restrained by this writ: State v. Foreign Bonds, 15 Wallace, 300; 7 Wallace, 262; 18 Wallace, 206; McGrath v. Loague, 6 Col., 340; Spears v. State,- Lbid, 420; 11 Hum., 249; Winston et al v. Penn. & Pacific, P. P. Co., MS., Nashville, Dec., 1872;, Smith v. Pen & Peagan, Comm. L. Rep. No. 10, 174, s. 73.</p> <p>And s. 7030 of the Code, and the act of 1873, c. 44, do not impair this writ in the collection of taxes.</p> <p>1. Because they relate to the collection of revenue due the State.</p> <p>2. Because, as to that, they are unconstitutional and void: 2 Yer., 264; 7 Yer., 22; 11 Michigan, 113; 2 Amer. Hep., 178; 1 Blackstone, 39; Constitution of Tennessee, art. 6. ■</p> <p>These assessments were unauthorized and void.</p> <p>1. Because they are an assessment upon property beyond the jurisdiction of Sumner: JR. JR. Co. v. Jaehson, 7 Wallace, 262; State Tax v. Foreign Bonds, 15 Wallace, 300;- Delaware State Tax, 18 Wallace, 206; 9 Yer., 490; Bedford v. City of Nashville, 7 Heis., 412; St. Louis Ferry Co., 11 Wallace, 431; Morgan v. Parham, 16 Wallace, 474.</p> <p>2. Because this taxation is unequal: Bedford v. City of Nashville, 7 Heis., 412; Toppan v. Merchants’ National BanJc, 19 Wallace.</p> <p>3. Because prohibited by statute, a tax being laid upon the shares of stock of individuals instead of the capital: , act of 1873, c. 118, s. 8.</p> <p>The Cumberland & Ohio railroad tax is null and void.</p> <p>1. And herein the defense of innocent purchasers is unavailing, and besides, the determination of the question is not left to the justices: Constitution, art. 2, s. 29.</p> <p>2. Said tax is void for want of power to issue the bonds: Cooley’s Const. Lim., 215; Dillon on Municipal Corp., § 426, c. 14; Marsh v. Fulton, 10 Wallace.</p> <p>3. There was an absence of power. First. Because the conditions precedent in reference to subscription were not complied with: Code, s. 1142; Winston v. Tenn. & Pacific R. FI. Co., MS., Nashville, 1872. Second. Because stock can not be taken by any county, except upon an election and the assent of three-fourths of the votes cast: Const., art. 2, s. 29.</p> <p>And the exception in said provision does not re- • late to the taking of stock; and if it does, it requires a majority of the voters of the counties voting, and not a majority of the voters voting: Const,, art. 2, s. 29; Cock v. Qooch, 5 Heis.; Minutes of the Const. Convention, pp. 139, 194-5.</p> <p>Loaning credit and taking stock are not the same: People v. Salem, 20 Michigan; 4 Amer. Bep., 400; Stewart v. Polk County, 27 Iowa; 1 Amer. Bep., 238; Allen v. Town of Toy, 60 Maine; 11 Amer. Bep., 285; Walker v. Cincinnati, 21 Ohio; 8 Amer. Rep., 24; Miller v. Leavenworth, 7 Kansas; 12 Amer. Bep., 425; Lj. & N. R. R. Co. v. Davidson Co., 2 Sneed.</p> <p>5. Because the bonds must be issued by the County Court and not the County Judge; act 1870-71, c. 50.</p> <p>6. The County Judge of Sumner county assesses and taxes the plaintiffs’ road as having thirty-five miles of road in Sumner, when they only have thirty-one miles therein, making a large difference in amount of taxes.</p> <p>The writ of certiorari was in use in North CaroCarolina as far back as 1777. With but few exceptions, it was used for all the different purposes to which it is now applied. The Constitution secured its existence, together with the general outlines of its use. For a time held to apply only to civil cases, afterwards it was held to apply to criminal cases. At first, its issuance was only authorized when directed by the fiat of a judge; but afterwards, it was allowed to be granted by two justices. Every facility has been afforded for its use, and every inconvenience remedied.</p> <p>This writ is the proper remedy by which to remove judicial sentences of all courts exercising jurisdiction under statutory regulations, either in a summary way, or by a mode of proceeding according to common law forms.</p> <p>It has also been held to lie in administration and probate causes.</p> <p>In the case of Murfree v. Leeper, 1 Tenn. B., 1, it was held that, in cases falling within the jurisdiction of the County Court, in which the judgment of such court was, by statute, declared to be final and conclusive, without any appeal to the Superior Court, this exclusion of appeal does not take away the writ of certiorari.</p> <p>What other remedy is there? A suit in equity will not lie to restrain the collection of a tax upon the sole ground that it is illegal. In addition to the illegality of the tax, there must exist some special circumstances bringing the case under some recognized head of equity jurisdiction — such as that the enforcement of the tax would lead- to a multiplicity of suits, or produce irreparable injury, or that the property is real estate, and the imposition of the tax throws a cloud upon the title of the owner — otherwise courts of equity will not interfere with the determinations of inferior boards or tribunals of special jurisdiction. “In all other cases,” says the court in the case of Ewing v. City of St. Louis, 5 Wallace, 413, “the review and correction of the proceedings must be obtained by the writ of certiorari.”</p> <p>■ In the case of Spears v. County Court Clerk of Shelby County, 6 Cold., 420, involving the question of taxes on privileges, this court says: “The writ of certiorari affords the proper remedy against a distress warrant illegally issued to collect taxes, or a penalty for failing to pay taxes.” This case involved a construction of the revenue act of 1868. This writ was used as the remedy, and relief obtained.</p> <p>In the case of the M. and A. of Nashville v. Pearl, 11 Hum., 249, it was held that the writ of certiorari was the proper process by which to remove a corporation warrant into the Circuit Court. The court says: “The certiorari has a much more extended application in this State than in England. It has been adopted with us as the almost universal method by which the circuit courts, as courts of general jurisdiction, exercise control over inferior jurisdictions, however constituted, and whatever may be their course of proceeding.” ■</p> <p>The provisions of our statute are conclusive. Sec. 3123 of the Code provides that “the writ of certiorari may be granted in all cases where an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy or adequate remedy.” The County Court is an inferior tribunal, the tax imposed is in violation of law, and the act of assessment made by the Judge of the County Court is clearly in excess of the jurisdiction conferred.</p> <p>But the main argument of defendants is, that the only remedy provided by law for the petitioners as taxpayers, is to pay the tax assessed against them under protest, and then to sue the officer collecting the same, within thirty days after making the payment, for the recovery thereof.</p> <p>The act of 20th March, 1873, “to facilitate the collection of revenues,” relates to revenue due the State, and if constitutional and valid, does not deprive the petitioners of their remedy as against the county and railroad tax.</p> <p>But we deny the constitutionality of this act. The Legislature had as well pass an act suspending the writ- of habeas corpus, as to deprive the citizen of his constitutional right to apply for and obtain the writ of certiorari, as provided in s. 10 of art. 6 of the Constitution.</p> <p>In the case of Duggan v. McKinney, 7' Yerg., 22, the court says: “This court is of the opinion that the power secured to the judges of the superior courts by the Constitution, by art. 5, and to the judges and justices of inferior courts, in the sec. 7 of the same article, was only intended to restrain the Legislature from abridging the right of the citizen to his remedy by certiorari.</p> <p>The Legislature may suspend the writ of habeas corpus, but no exception is made by the Constitution in which the writ of certiorari should be suspended, or refused the citizen when applied for upon his sworn petition, showing good cause for the same. The Legislature has created an exception in favor of the State.</p> <p>But, furthermore, s. 17 of art. 1 of the' Constitution provides; “That all courts shall be open; and every man, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.” When a citizen is pursuing his remedy by due course of law, that is, by suit pending in one of the courts, an act of Assembly passed requiring his suit, or a certain class of cases embracing his, to be dismissed, would be unconstitutional and void: 2 Yerg., 554; 6 Yerg., 119, 132. .</p> <p>A rule oí court requiring a motion for new trial to be made on a particular day, has been held to be repugnant to the constitutional provision that all courts shall be open: 7 Yerg., 502. An act must be unconstitutional -which requires the citizen to pay revenue when the same is unjust, illegal, contrary to the statute, and a plain violation of a constitutional provision ; and such is the requirement of the act in question. This act .seems to be violative of fundamental principles of republican government, and a legislative encroachment upon the Constitution.</p> <p>The writ of certiorari is likewise authorized by ss. 3123 and 3124 of the Code. By reference to s. 17, art. 2, of the new Constitution, we have the following clause: “All acts which repeal, revive, or amend former laws, shall recite in their caption or otherwise the title or substance of the law repealed, revived, or amended.” Neither in the caption or body of said act are these two sections of the Code mentioned, either by number, title, or in substance; nor is there any repealing clause in said act. The result of this omission is, that ss. 3123 and 3124 of the Code are not repealed by the act of 1873, c. 44.</p> <p>The Circuit Judge allowed defendants to file their sworn answers, together with a number of exhibits and affidavits, on the motion to dismiss. This is error: Beck v. Knab, 1 Tenn. B., 55; King v. Rentfroe, 1 Tenn., 191; Stuart v. Hall, 2 Tenn. B., 179.</p> <p>In the case of Studdart v. Fowlkes, 2 Swan, 537, all these decisions are reviewed, and the practice settled to be, that on the hearing of motions to dismiss petitions for a certiorari for insufficiency, counter affidavits of all persons are excluded, and the court looks alone to the petition and papers: 1 Head, 624; 3 Sneed, 326,</p> <p>The re-assessments made by the County Judge were not authorized by law.</p> <p>1st. The facts upon which the same were made.</p> <p>Petitioners own 185 miles of. road from Louisville to Nashville, 31 miles of which lie in Sumner county, civil districts Nos. 5, 6, 7, 11, 12, 19, including road-bed, occupying, in the aggregate, 241 acres, valued at $8,435; several depot grounds, and one .separate parcel of land. In Davidson county and the' State of Kentucky they own valuable engine-houses- and machine-shops, indispensable to running and operating their road. Also rolling stock, which is in. Sumner county only when in use, passing over the-road. Assessments were made upon their depot grounds- and tract of' land for the years 1873 and 1874, by the respective tax assessors in the several districts aforesaid, and the tax levied in pursuance thereof, aggregating $105. The amount assessed and levied for 1873 was paid. In June, 1874, petitioners were notified to appear before the County Judge of Sumner, and show cause why the road-bed, rolling stock, &c., should not be assessed for taxation. They then and there proved the facts just recited, and insisted that their road-bed, rolling stock, &c., as such, were not liable for taxation. But the County Judge assessed the road-bed, rolling stock, &o., in Sumner county at the sum of $675,000, and a tax levied thereon for the year 1873 of 5,400 for state, county, school and sinking fund purposes. The assessment for 1874 was $500,000. The assessments for both years were made upon the same basis, which was upon a valuation of the entire road-bed, rolling stock, equipments, engine-houses and machine-shops, in view of the special purposes and uses to which they were all applied, and the profits arising therefrom.</p> <p>The act of 1873, c. 118, to provide more just and •equitable laws for the assessment and collection of revenue for state and county purposes, relieves us of the necessity of reviewing the previous laws, since, by the 80th section of said act, all laws in conflict therewith are repealed. The 8th section thereof provides that “no tax shall hereafter be assessed upon the capital of any bank, banking association, or of any other joint stock company; but the stockholders in such bank, banking association, or other corporations, shall be assessed and taxed on the value of their shares <of stock therein.” It is sufficient to render assessments made and tax levied on petitioners’ property for 1873 and 1874 illegal, that the County Judge has not complied with the provisions of the act; fox', by it, the capital of no corporation in Tennessee is liable for taxation as such, but the individual shares of «took shall be assessed and taxed according to their value. If these corporations own real estate, the same is not exempt from taxation, but is subject thereto to the same extent and rate, and in the same manner, as other real estate.</p> <p>The power of taxation is derived by the legislative department of the government from art. 2, s. 28, of the Constitution, which is, that all property, whether real, personal or mixed, shall be taxed according to its value, and not according to the purposes for which the same may be used; or what it may be worth estimated and valued in connection with something in another county or state, but simply according to its value; that value to be ascertained in such manner as the Legislature may direct, so that taxes shall be equal and uniform throughout the State. Furthermore, no one species of property shall be taxed higher than any other species of property of the same value.</p> <p>If the property is to be assessed as real estate under the act of 1873, then the law governing the same is clear and unmistakable. By the 4th section of the act, real estate shall be assessed according to its market value, on a credit of one and two years, deducting fifteen per cent, in gross, in the district or ward where the same is situated. If the assessments made by the County Judge of $675,000 for 1873, and $500,000 for 1874, could be held to have been made upon the property of the Louisville & Nashville Railroad Company as real estate, while the same would not be in compliance with statutory law, in addition thereto, one species of property would be taxed higher than another. The real estate of this corporation lying in Sumner county numbers 241 acres, worth, as is alleged in the petition, $8,435. The same is assessed by the County Judge, and a tax levied thereon for one year of $5,400. An unequal and oppressive tax is contrary to law: 1 Hum., 232.</p> <p>The road-bed, rolling stock, and such buildings as are necessary and indispensable to tbe running of the road, are not real estate under the act of 1873. They compose a part of the capital stock of the company, which, by s. 8 of the act, is not liable to be assessed as such, but which is reached by a tax on the shares of stock in the hands ■ of stockholders. The value of the shares of stock is controlled to a very great extent by the number, size and cost of the appurtenances of these corporations; and if the same are taxable as real estate, and in addition must pay the taxes required by this act, the result necessarily is double taxation. The petition alleges that the stockholders have been so assessed. All railroad companies own lands along the line of their road, especially in timbered sections of country, from which they supply cross-ties and fuél. Such are the lands contemplated by said act which are to be taxed as other real estate; otherwise, no uniform rule can be laid down for making such assessments.</p> <p>The County Judge fixes' a value upon the entire line of road, with all its appurtenances, both in Tennessee and in Kentucky; then, there being 31 miles of the road in Sumner county and 185 miles in Tennessee and Kentucky, he takes 31-185 of the whole value, by which method he arrives at a fictitious value for every mile of road in Sumner county, and thus he assesses the same for largely more than its actual value. All their costly bridges are in Davidson county and Kentucky — out of Sumner county. These are estimated by him in arriving at a value for each mile in Sumner. It is simply an absurdity to say that every mile of petitioners’ road in Sumner county, or in Tennessee and Kentucky, is of equal value.</p> <p>But other objections remain. If this mode of assessment be correct, then Davidson county must adopt the same rule as against petitioners, which estimates that portion of the road in Davidson as worth the same in proportion to the number of miles in the two counties, as in Sumner, when in point of fact, the road in Davidson is worth largely more than in Sumner, because all the valuable depot buildings, machine shops and engine houses of the company in Tennessee, and the railroad bridge across the Cumberland river, are in Davidson county. By this rule Sumner gets more than her proportion. Another objection is, that the officer of the law in making assessments and levying taxes, is confined to his own county and state, and therefore, he is strictly confined to property within his jurisdiction. In the assessment here, is included not only the buildings in Davidson county and Kentucky, above mentioned, but also the individual shares of non-resident stockholders. If any statute could be found authorizing such a course, the courts could not enforce the same, because tax laws are purely local and can have no extra-territorial operation: 15 Wall., 300.</p> <p>In the case of Railroad Company v. Jaekson, 7 Wall., 262, the Court held that a state had no power to tax the interest on bonds, secured by mortgage, given by a railroad corporation, binding every part of the road, when the same lies partially in another state; one road incorporated by two States. In the case of St. Louis v. The Ferry Go., 11 Wall., 423, the Court held that the ferry boats of a corporation, incorporated in one state, carrying passengers forward and backward across a river to a city in another state, are not taxable under a law taxing “within the city,” where the relation of the boats to the city was simply that of contact, as one of the termini of their voyages.</p> <p>In the case of Louisville & Portland Canal Co., v. Commonwealth of Kentuehy, one hundred acres of land owned by the company, were listed for taxation by the Commissioner at $1,000,000, considered in their improved state, including all improvements thereon. But all the property was situated in Jefferson county, within the jurisdiction of the Commissioner. Besides, the Commissioner acted under a statute in force in Kentucky, and upon which this decision was based, directing lands or town lots to be listed, adding their value “considered in their improved state, including all improvements thereon.” We have no such statute in Tennessee. Similar statutes were enacted in the different states in which such decisions were made; at least, as far as I have been able to extend my investigation.</p> <p>The tax for the benefit of the Cumberland and Ohio Eailroad, involves the legality of the entire proceedings connected therewith. Contesting the collection of any tax, opens the investigation, not only as to the mode, but as to right of the assessment and levy of the tax. The Code, 1142, provides, that “any county, incorporated town, or city, may subscribe for stock in railroads upon the following terms and conditions”: minutely set out in 1143-49. Section 1150 provides, that as soon as the stock is subscribed, it is the duty of the County Court, or corporate authorities, to levy a tax sufficient to meet the instalments of subscription as made. This latter section contemplates a strict compliance with all terms and conditions prescribed in that chapter. For upon them is made to depend the right and power to subscribe the stock.</p> <p>Upon the application of Commissioners, a proposition was submitted to the legal voters of Sumner county, to take stock in said Cumberland & Ohio Railroad Company, to the amount of $300,000, payable in the bonds of the county. An election was held, and without any order of the court subscribing said stock, or confirming the election, or recognizing the same as valid, the County Judge proceeded to issue some $80,000 or $100,000 of the bonds of the county. The County Court has levied' a tax sufficient to meet the interest on the entire amount of $300,000.</p> <p>The subscription of stock by Sumner county in said Cumberland & Ohio Railroad is void. By the Code, the election can be ordered only upon application made in writing by the Commissioners. But before this application can be made, the entire line of the road, in which the stock is proposed to be taken, shall be surveyed by a competent engineer, and substantially located by designating the terminii, and approximating the general direction of the road, and an estimate of the grading, embankments, and masonry, made by the engineer under oath. This survey, location, and estimate of the entire line, must be filed with the application for the order for election.</p> <p>These are conditions • precedent, and the power of the County Court to order the election is vested only when these directions are followed. The chief engineer of the company in his report of the survey and estimate of grading, etc., says: “In compliance with the requirement of the Code of Tennessee, as set' forth in section 1145, ch. 3, title 8, I have caused surveys and estimates on that portion of the railroad contemplated from Nashville to Cincinnati, lying in Sumner county,” which was done by E. F. Falconnet, a competent engineer. This report is not under oath. The latter under oath states, that “he has made a survey of the Cumberland & Ohio Eailroad, located in Sumner county, from the State line to Gallatin, and then to a point of intersection on the Edgefield & Kentucky Eailroad,” giving in addition, the distance through Sumner county, and' estimated cost.</p> <p>The survey and estimate required by the statute, was of the entire line of the road from Nashville to Cincinnati, and not merely of that portion in Sumner county. Nor is the survey, “ from the State line to Gallatin, and thence to a point 'of intersection on the Edgefield & Kentucky Eailroad,” without mentioning or giving a general idea as to what point he commenced on the State line, and the same as to the point of intersection, such a substantial location, designating the termini, and approximating the general direction of the road, as meets the requirements of the law. These omissions are not mere irregularities, which render the proceedings voidable, and of which advantage could be taken then, but not afterwards, but they are fatal to the proceeding.</p> <p>By the act of 1851-2, e. 117, the County Courts of the respective counties, through which railways had been or might be thereafter, located, were authorized to subscribe stock therein through their chairman. As conditions precedent, however, ■ the Sheriff was required to hold an election, after giving thirty days notice, specifying the amount of stock proposed to be taken, when payable, and the name of the company in which the stock was to be taken. In the case of the Justices of Campbell County v. The Knoxville & Kentucky R. R. Company, 6 Col., 598, the Court held, that all these requisites must be complied with, to authorize the subscription of stock by the chairman under said act; Winston et ais., v. Tennessee & Pacific Railroad Company, MS.</p> <p>The provisions of the Code referred to, are not repealed by the act of December, 11, 1871. The latter is entitled, “An act to amend section 1142 of the Code, and to repeal the third section of an act passed January 16, 1871.” The first section of the act referred to, provides “That so much of section 1142 of the Code, as prohibits any incorporated town, or city, from subscribing stock in railroads, to an amount exceeding in the aggregate one-fifteenth of its taxable property, be and the same is hereby repealed.”</p> <p>Section 2 repeals section 3 of the act approved January 23, 1871. . Section 3 directs how the election is to be held by the Sheriff. Section 4 authorizes stock to be subscribed to an amount not exceeding one-tenth instead of one-fifteenth of its taxable property. The 5th section repeals section 1149 of the Code, which requires the money raised to be expended in the county in which the stock is taken, or as near thereto as practical. No other sections of the Code are amended or repealed by this act. Besides, the record from the County Court shows that the survey and estimate were made, and other proceedings had, under these several sections of the Code.</p> <p>• Another reason why the issuance of these bonds is not authorized by law, is, that it would be in direct violation of the Constitution. The distinction between giving or loaning credit to, or becoming a stockholder in such association or corporation, is clear. The Constitution recognizes the distinction: Art. 2, s. 29. Perhaps the origin of the distinction is this. In 1838, by legislative enactment, the State was authorized to become a stockholder in turnpike companies and other corporations. Stock was subscribed by the State under this act. But the losses of the State were so heavy, that in 1852, this law was repealed, and an act passed authorizing bonds to be issued, as a loan of the credit of the State to corporations.</p> <p>Art. 2, s. 29 of the Constitution provides, that “the credit of no county, city or town, shall be given, or loaned to, or in aid of any person, company, association, or corporation, except upon an election to be first held by the qualified voters, and the assent of three-fourths of the votes cast at said election. Nor shall any county, city, or town become a stockholder with others in any company, association, or corporation, except upon a like election, and the assent of a like majority.” Now, be it either to take stock or loan credit, the assent of three-fourths of the votes cast at the election, is necessary.</p> <p>But twenty-six counties, Sumner included, are excepted out, of the provisions of this section, so far that the assent of a majority of the qualified voters of either of said counties, voting on the question, shall be sufficient, when the credit of such county is given or loaned to any person, association, or corporation. To subscribe stock requires three-fourths of the votes cast; to a loan of credit, only a majority of the qualified voters of either of said counties voting is necessary. But this is a case of subscription of stock of $300,000; the assent of three-fourths of the votes cast, is required.</p> <p>But concede that the exception made in this provision of Constitution would apply. Then what would be required? “A majority of the qualified voters of either of said counties voting on the question,” not the assent of a majority of the votes cast. The word voting, here most clearly refers to counties, and not to the qualified voters. To give or loan the credit of either of said twenty-six counties, the assent of a majority of the qualified voters of the county must be obtained. Otherwise the expression “ a majority of the votes cast” would have been employed, as is done in the same section of the Constitution.</p> <p>At the time of the election there were 4,500 qualified voters in Sumner county. 2,861 voted at said election, of that number, 1,781 voted in favor of, and 1,080 against subscription.</p> <p>But the argument is made that some of these bonds have passed into the hands of innocent purchasers and bona fide holders, and that as such, they are to be protected.</p> <p>This position would be correct, if the objections assigned were mere irregularities. But if a compliance with the requirements of the' Code, was indispensable, then the authority of the County Court to order the election, only existed when this was done. If done without, the election would be void. Neither could these parties, if such there be, shield themselves as innocent purchasers or holders of the .bonds, if we are correct in the construction we have given to the provision of the Constitution. A subscription of stock in a railroad by counties, is in the nature of a contract. The county must act through its officers as agents, who derive their authority to act, together with the manner in which the same is to be exercised, from the Constitution and statute books. Ignorantia legis, exeusat neminem. From these, persons may know the extent of the agent’s authority, and whether the acts done are within the scope of their agency. If these bonds are void, ah initio, holders thereof could stand upon no higher ground than a bona fide holder of forged paper, who has never been protected by the courts as an innocent purchaser.</p> <p>Petitioner is a foreign corporation, not a Tennessee or United States corporation: See petition, Charter in Kentucky, and act of Legislature in Tennessee.</p> <p>It is taxed in Kentucky by the mile, and not on stock, consequently justice demands taxation here by the mile and not on stock, as stockholders live in a different state and we protect their property: See act of Kentucky Legislature, February 20, 1864; L. <& W. JR. JR. Co. v. Commonwealth, 1 Bush, (Ky.) R., 250.</p> <p>A corporation like this has four elements of property for taxation, viz.: the capital stock; 2. the corporate property; 3. the franchises of the corporation, and all of which are taxable to the corporation, and lastly; the shares in the capital stock, which is taxable only to the shareholders: Gordon v. Appeal Tax Court, 3 How., 133, 150, or 346, Curtis’ Ed.; Redf. Am. Railway cases, 499, 500 and 506.</p> <p>The stock or shares in a corporation is a totally different thing from the capital stock, the franchises of the corporation, or the corporate property of the corporation, and therefore, a tax on shares will not exempt the other items from taxation, and to tax both can not be construed to be double taxation: 9 Yer., 490; 12 Allen, (Mass.) 316; 13 Gray, 488. See also the various cases in U. S. Courts, 3 Wall., 573: 4 Wall., 459; 6 Wall., 632, 594, 611; 9 Wall., 353; 8 Wall., 168; 10 Wall., 410; 40 Barb., (N. Y.) 334; 46 Barb., 588; 18 How., (N. Y.) 245.; 32 Barb., 509; 23 N. Y., 192. _ ■</p> <p>All the presumptions are in favor of the power to tax, and the power of taxation is unlimited in the Legislature or Congress. It is one of the incidents of sovereignty that cannot be controlled: Cooley, C. L., 479, 845; 4 Wheat., 428; McCulloch v. Maryland, 4 Peters, 561; Providence Bank v. Billings, Abbott’s Digest of Corporations, p. 834, §§ 5 to 10; 6 Wall., 605-7; 9 Wall., 859; 10 How., 393; 19 Penn. R., 144; 7 Ham., (Ohio,) 125.</p> <p>The courts must follow the legislature in such eases: Cooley Const. Lim,, 129.</p> <p>The petitioner is liable to taxation under the act of March 25, 1873: See the various sections, and section 8 only applies to cases like National Banks, etc., and not to petitioner which is foreign corporation.</p> <p>Rolling stock must be treated as real estate, and assessed in the counties: 25 Ind., 177; 12 Barb., (N. Y.) 223; 16 Barb. 244; 12 Gill. & L, (Md.) 117; 48 Barb., 173; 5 Rhode Island, 459; 10 Ohio R., 159-64; 4 Paige Ch. R., 384; 14 111., 163; 12 Iowa, and especially 2 Rhode Island, 459.</p> <p>Street railways are taxed as real estate: See cases 2 Dillon on Mun. Corp., § 628, and cases cited. See especially 52 Barb., People v. Erie II. R.</p> <p>The method and manner of assessing railroads is discussed and determined: 48 Barb., (N. Y.) 173; 27 111., 64.</p> <p>In Delaware railroad tax case, 18 Wall., 206, 32, the Supreme Court of the United States held, that besides the privilege tax, the legislature might tax not only the nett earnings, but also the shares, and that the taxation of shares was a different tax from that of the property of the corporation, approving 3 Wall., 583; 9 Yer., 501; 14 Gratt., 385; 46 N. H., 398; 12 Allen, 322; Redfield’s Supplement to Law of Railways, 507, 510.</p> <p>In Union Pacific Railroad Go. v. Peniston, 18 Wall., 5-50, the tax of f16,000 per mile by Nebraska held good. A strong case.</p> <p>In regard to the bond tax; petitioner and the County Court of Sumner are estopped by the acts of their agents: 10 Wall., 644-6; Abbott’s Digest of Corporations, p. ,800, § 150.</p> <p>Fraud must be set up in time and contest must also be made in time: Abbott’s Digest of Corporations, p. 806, §§ 200-1.</p> <p>A purchaser of a bond is not bound by suit pending : 1 Woolw., (Iowa,) 66; 2 U. S. Digest, title, Bonds; 18 Gratt, (Va.) 338.</p> <p>Tax proceedings are in the nature of proceedings in rent, and according to the law of the land: 2 Tenn., 215; 5 Hay., 256; 4 Wheat, 428; Potter’s Dwar. on Stab, 405-6, 420-7.</p> <p>As to these railroad bonds, the question is no longer in fieri; the rights of third. parties have attached, and the petitioner is precluded from making or raising these preliminary questions upon every principle of estoppel. Corporations, like individuals, are estopped either by acts or acquiesence, where the rights of third parties have attached: Abbott’s Dig. of Corp., p. 329, §§ 1 to 7; 32 N. H., 295; 34 111., 459; 15 Ind., 26; 11 Ohio, 516; 2 Black, (U. S.) 722; 8 Ohio, 394; 29 Conn.; 34 111., 405, 421; 38 111., 266; 5 Wall., 772; 7 Ohio, 327, 421; Bigelow on Estoppel, c. 18, pp. 461-67; 24 111., 90. See 5 Am. ■ Law B,ev., 272, for a full discussion of ultra vires.</p> <p>The facts of this cause show that petitioner stood by and saw the bonds issued and paid taxes for 1873, and this "determines his election and works an estoppel”; Bigelow on Estoppel, p. 578, c. 20.</p> <p>The issuance of bonds, the levy of a tax and payment of interest on the bonds " validates county bonds irregularly issued”: 5 Wall., (U. S.) 772; 25 Penn., 156; 1 Penning. (N. J.) 347; 1 Halst. (N. J.) 115; 3 Halst., 191; 19 Johns., 284; 4 Serg. & Bawle; Ang. & Ames on Corp., §§ 237-8, and note 3, and authorities cited.</p> <p>The various questions of irregularity raised by petitidn, are such as can only be raised while the matter is in fieri and not after the rights of third parties have attached. It is like the case of an erroneous judgment or decree, or sale of land, which can only be raised directly. If the court had jurisdiction of the person and subject matter, it is sufficient: 5 Sneed, 128; 8 Hum., 207; 1 Head, 460.</p> <p>Even the acj;s of officers de facto are as valid as those de jure: 3 Head, 691; 5 Sneed, 510.</p> <p>A county acts through its officers and is bound by their action, as a natural person is bound by his agent. Therefore, the county is bound as the County Judge and - County Court have issued the bonds, levied the taxes, etc.: 3 Hum., 305; 11 Hum., 47; 2 Swan, 504; State, ex rel. JRoss v. Anderson county.</p> <p>The following cases cover every question of irregularity made in the petition, and they hold that where the bonds are issued, that it is too late to raise these preliminary questions: 6 Ellis & B., (Com. Law B.,) 327; 21 How., 539; 24 How., 433; 1 Black B., 386-90; 2 Black, 722; 1 Wall., 83, 173, 211, 385 ; 3 Wall., 294, 237, 654; 4 Wall., 270, 535; 5 Wall., 772, 194; 6 Wall., 166, 210; 7 Wall., 82; 11 Wall., 136-9; 14 Wall., 282; 13 Wall., 298-9: 15 Wall., 355-73; 16 Wall., 6 and 644; 19 Wall., 84.</p> <p>All the presumptions are in favor of the validity of the bonds and subscription: 3 Hill, 263; 3 N. Y., 68; 4 Mass., 45.</p> <p>Conditions precedent are always to be presumed to be complied with or waived, where bonds are issued, or the subscription has been made: 43 Penn.; Commonwealth v. Pittsburgh, 7 Wright, 391.</p> <p>A tax payer can not stand by and see improvements made upon the strength of a subscription, and then deny its validity: 34 Ind., 140; 16 Kansas, 300; 1 Cal., 455.</p> <p>The record of the County Court can not be attacked collaterly unless void: 6 Hum., 444; 5 Hum., 313-15; 4 Sneed, 371; 3 Sneed, 59. »</p> <p>Every presumption not inconsistent with the record is to be indulged in favor of the record of a court like the County Court: 5 Cranch., 173; 10 Peters, 449; 3 Peters, 193; 2 How., 319; 2 Wall., 328; 6 Wheat., 453; 4 Wall., 435; 2 How., 319; 22 How., 1; 4 Wall., 174.</p> <p>Every intendment is in favor of the County Court’s jurisdiction: 6 Hum., 631, 378; 2 Head, 253.</p> <p>The County Court is not an inferior court: 1 Col., 369; 2 Swan, 206; 4 Col., 70; 6 Hum., 131.</p> <p>The act of January 23, 1871, repealed the Code, sections 1142 to 1165.</p> <p>To constitute a “subscription” by a county to the stock in a railroad company, it is not necessary that there be an act of chirographical subscription. Acts may constitute it or estop the county to deny it: 19 "Wall., 241; 11 B. Munroe, 143.</p> <p>The decision of the State Courts declaring bonds null and void will not be regarded' by the United States Courts, where it is ■ a question of bonds negotiable in form: 19 Wall., 666; 3 Wall., 654; 4 Wall., 435; 6 Wall., 166 and 120; 11 Wall., 136-9; 14 Wall., 282.</p> <p>County bonds not void ab initio may be made valid by ratification. The doctrine of ratification is a legal panacea to all manner of mere irregularities, where the bonds are not void ab initio.</p> <p>A county under our law is a corporation. The citizens are the corporators, and the County Court is the agency through which the corporation acts. Like other artificial or natural persons, it can ratify the unauthorized acts of its • agents: State, ex rel, Boss v. Anderson comity.</p> <p>The power to issue bonds, is incidental to the power in the County Court to create a debt: State, ex rel. Boss v. Anderson County.</p> <p>Irregularities in an election or in the issuance of bonds, do not affect the holder of the bonds where paid out bona fide: State, ex rel. Boss v. Anderson county.</p> <p>Petitioner is liable to taxation under the 18th section of its charter, on its “real estate estimated upon the prime cost of the proposed works.”</p> <p>The prime cost June 1, 1864, on main stem, 185 miles, besides court, agency, office and contigent expenses, and interest accounts, was $5,981,612.67, or $32,332.04 per mile, or $12,000 per mile more than it is assessed at. The prime cost has been added to since 1864, by new depots, lands, rolling stock and machinery, at least $1,500,000.</p> <p>The report ending June 1st, 1864, shows nett earnings, less interest account, main stem...................................$2,077,599 03</p> <p>Interest on mortgage debt, main stem..... 226,012 00</p> <p>Leaves after paying all expenses.............$1,851,587 03</p> <p>On a capital of....<............................... 4,333,224 98</p> <p>Or 42f per cent on capital stock.</p> <p>Prime cost of main stem, 185 miles, June 1st, 1864.................................... 7,491,117 80</p> <p>In 1865, made 35 per cent.</p> <p>In 1866, made 25 per cent.</p> <p>Report ending October 1st, 1868, shows it cost per mile............................... 43,029 00</p> <p>Report ending October 1st, 1869, shows- it cost per mile............................... 42,040 18</p> <p>The report of October 1st, 1873, is the one in which the Court will see furnished the main information to be relied on, Jan. 10, 1873, and</p> <p>Jan. 10, 1874, cost per mile......... 38,000 00</p> <p>33 miles in Sumner county gives............ 1,254,000 00</p> <p>Nett earnings, main stem, 185 miles....... 1,011,485 74</p> <p>185 miles at $38,000, gives.................... 7,030,000 00</p> <p>Nett profits gives on cost in 1873, 14J per cent.</p> <p>First. This suit, we insist, can not be maintained! as against the taxes due the State. It is prohibited by the act of 1873, to facilitate the collection of revenue: c. 44, Sess. Acts, pp. 71-73.</p> <p>This case must be controlled by this act, unless the same be held unconstitutional, and consequently null and void.</p> <p>“The accepted theory upon this subject appears to be this: In every sovereign State there resides an absolute and uncontrolled power of ’legislation. In Great Britain .this complete power rests in the Parliament; in the American States it resides in the people themselves, as an organized body politic. But the people, by creating the Constitution of the United States, have delegated this power as to certain subjects, and under certain restrictions, to the Congress of the Union; and that portion they can not resume, except as it may be done through amendment of the National Constitution. Eor the exercise of the legislative power, subject to this limitation, they create, by their state constitutions, a legislative department, upon which they confer it; and granting it in general terms, they must be understood to grant the whole legislative power which they possessed, except so far as at the same time they saw fit to impose restrictions. While, therefore, the Parliament of Britain possesses completely the absolute and uncontrolled power of legislation, the legislative bodies of the American States possess the same power, except, first, as it may. have been limited by the Constitution of the United States; and, second, as it may have been limited by the constitutions of the states. A legislative ■act can not,, therefore, be declared void, unless its conflict with one of these two instruments can be pointed out.”</p> <p>* * * “When a law of Congress is assailed as void, we look in the National Constitution to see if the grant of specified powers is broad enough to embrace it; but when a State law is attacked on the same ground, it is presumably valid in any case, and this presumption is a conclusive one, unless' in the Constitution of the United States or of the State we are able to discover that it is prohibited. We look in the Constitution of the United States for grants of legislative power, but in the Constitution of the-State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the State was vested in its creation. Congress can pass no law but such as the Constitution authorizes, either expressly or by clear implication; while the State Legislature has jurisdiction of all subjects on which its legislation is not prohibited”: Cooley’s Const. Lim., 172, 173; Bell v. Bank oj Nashville, Peck, 269.</p> <p>Chief Justice Marshall, in one of the ablest -opinions delivered by him, has said of the taxing power: “ The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the Legislature acts upon its constituents. This-is, in general, a sufficient security against erroneous and oppressive taxation. The .people of a State, therefoi’e, give to their government a right of taxing themselves and their property; and as the exigencies of' the government can not be limited, they prescribe no-limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence-of the constituents over their representative, to guard them against its abuse”: MoCulbeh v. Maryland, 4 Wheaton, 428.</p> <p>“The power to impose taxes is one so unlimited in force and so searching in extent, that the courts-scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches-to every trade or occupation; to every object of industry, use, or enjoyment; to every species of possession; and it imposes a burden which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading, and at no point does the power of the government affect more constantly and intimately all the relations of life than through the exactions made under it. Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes. The power to tax. rests upon necessity, and is inherent in every sovereignty. The Legislature of every free State will possess it under the general grant of legislative power, whether particularly specified in the constitution among the powers to be exercised by it or not. No constitutional government can exist without it, and no arbitrary government without regular and steady taxation could be anything but ah oppressive and vexatious despotism, since the only alternative to taxation would be a forced extortion for the needs of government from such persons' or objects as the men in power might select as victims”: Cooley’s Const. Lim., (3d ed.) 479; Lane County, v. Oregon, 7 Wallace, 77; Harrison v. Willis, 7 Heis., 35; 3 Statutes at Large, 592.</p> <p>In Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How., 272, the unanimous opinion of the court was delivered by Mr. Justice Curtis. It is an elaborate and learned opinion. He says: “ Tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 can not be denied to be due process of law, when applied to the ascertainment and recovery of balances due to the government from a collector of customs, unless there exists in the Constitution some other provision- which restrains Congress from authorizing such proceedings. Eor, though ‘due process of law’ generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedmgs: 2 Inst., 47, 50; Hoke v. Henderson, 4 Devereux (N. C. Kep.), 15; Taylor v. Porter, 4 Hill, 146; Van Zandt v. Waddel, 2 • Yer., 260; State Bank v. Cooper, Ibid, 599; Jones’ Heirs v, Perkins, 10 Yer., 599; Greene v. Briggs, 1 Curtis, 311; yet, this is not universally true. There may be, and we have seen that there are, cases under the law of England, after magna charta, and as it was brought to this country, and acted on here, in which process, in its nature final, issues against the body, lands and goods of certain public debtors, without any such trial; and this brings us to the question, whether those provisions of the Constitution which relate to the judicial power are incompatible with 'these proceedings?”</p> <p>Again: “ The power to ' collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the • Constitution.”</p> <p>And again; “ It may be added, that probably there are few governments which do or can permit their claims for public taxes, either on the citizen or the officers employed for their collection or disbursement, to become subjects of judicial controversy, according to the course of the law of the land. Imperative necessity has forced a distinction between such claims and all others, which has sometimes been carried out by summary methods of proceeding, and sometimes by systems of fines and penalties, but always in some way observed and yielded to.”</p> <p>He still further adds: “Though, generally, both public and private wrongs are redressed through judicial action, there are more summary extra judicial remedies for both. An instance of extra judicial redress of a private wrong is the recapture of goods by their lawful owner; of a public wrong by a private person, is the abatement of a public nuisance; and the recovery of public dues by a summary process of distress, issued by some public officer authorized by law, is an instance of redress of a particular kind of public wrong, by the act of the public through its authorized agents. There is, however, an important distinction between these. Though a private person may retake his property, or abate a nuisance, he is directly responsible for his acts to the proper judicial tribunals. His authority to do these acts depends not merely on the law, but upon the existence of such facts as are, in point of law, sufficient to constitute that authority; and he may be required, by an action at law, to prove those facts, but a public agent, who acts pursuant to the command of a legal precept, can justify his act by the production of such precept. He can not be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, can not be sued without its own consent. At the. same time there can be no doubt that the mere question, whether a collector of the customs is indebted to the United States, may be one of judicial cognizance. It is competent for the United States to sue any of its debtors in a court of law. It is equally clear that the United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just. Though both the marshal and the government are exempt from suit for anything done by the former in obedience to legal process, still Congress may provide by law that both, or either, shall, in a particular class of cases, and under such restrictions as they may think proper to impose, come into a court of law or equity and abide by its determination. The United States may thus place the government upon the same ground which is occupied by private persons who proceed to take extra judicial remedies for their wrongs, and they may do so to such extent, and with such restrictions, as may be thought fit”: City of Philadelphia v. The Collector, 5 Wall., 420; Nichols v. United States, 7 Wall., 122.</p> <p>The act of Congress of July 13, 1866, c. 184, s. 19, prohibited suits for the recovery of taxes alleged to have been paid illegally, except upon certain conditions therein set forth: 14 U. S. Statutes at Large, 152.</p> <p>This act was amended March 2, 1867, c. 169, s. 10, by adding the following: “And no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court”: 14 U. S. Statutes at Large, 475.</p> <p>This provision came before the Circuit Court of the United States for the southern district of Ohio, for enforcement in the case of Pulían v. Kinsinger, in equity, before Judge Emmons. He delivered an ably written opinion; maintaining the constitutionality of said provision. He says: “It has been again and again decided, under every variety of state constitution intended to secure ‘trial by jury/ ‘due process of law/ and the ‘inviolability of private property/ that the political power may appropriate it by any summary mode which the wisdom of the Legislature may prescribe, and that neither the novelty nor the injustice of the form will warrant judicial interference. The following are but a small portion of the numerous judgments establishing the principle and illustrating the tendency in our country to question and demand the reiteration of the oldest and best settled governmental powers. In Ohio this has often been ruled: Wright’s Ohio R., 132; Mercer v. Williams, 5 Hammond, 115; Bates v. Cooper, 6 Ohio, 454; Williard v. Hamilton, 14 Ohio; Symons v. Cincinnati, 12 Ohio State, 105. It is repeatedly said in that State that these constitutional provisions have no influence upon the power of the State to prescribe rules by which to condemn or tax the citizen’s property. See, also, 4 ■ Blackford (Ind.), Pubotham v. McClure; 8 Black-ford, 266, Harrison v. Lawrence; 1 Carter (Ind.), 48, McCormack v. Trustees; 2 Carter, 331, Camal Co. v. Ferris; 18 Wend, Bloodgood v.' Mohawk Co.; 2 Hill, 342, Baker v. Johnson; 6 Hill, 359, People v. Hayden; 5 Davis, 401, People v. Commissioners; 15 Barb., 627, Paxford v. Knight; 1 Gibbs (Mich.), 442, Snoio v. Williams; 31 Maine, 215, Mason v. Kennebec Co.; 19 Penn. St., 456, Lyons v. Commonwealth; 17 Penn. St., 524, 12 Illinois, 102, People v. Wells; 21 Conn., 304, Bradley v. N. Y. & Co.; 21 Conn., Clark v. Saybrook; 1 Penn. St., 309, Mayor v. Scott; Littell ¡ (Ky.), 223, Jaekson v. Union; 1 A. K. Marshall, 84, : Cashwell’s Heirs v. Mollroy; 2 Dev. & Battle’s Law i (N. C.), 451, Raleigh & C. R. R. Co. v. Davis; 7 Metcalf, 78, R. R. Co. v. Middlesex; 3 Mich., 496, People v. Oreen; 3 Mich., 506, Smith v. MaAdam; 35 New Hamp., 135, Mt. Washington R. R. Co.”</p> <p>The case of Sears v. Cottrell, 5 Mich., 251, is a leading case. There the act of 1853 (S. Acts, p. 140) provided as follows: “ In case any person shall refuse or neglect to pay the tax imposed on him, the treasurer shall levy the same by distress and sale of the goods and chattels of said person, or of any goods and chattels in his possession, wherever the same may be found within his township; and no claim of property to be made, thereto by any other person shall be available to prevent a sale.”</p> <p>It was objected that the last clause was unconstitutional, on the ground that it violated the provision that no person should be deprived of his property “without due process of law,” etc.</p> <p>The Court among other things, say: “The law is for the collection of a revenue of the State, and not of a debt between individuals. State exigencies are Í not to bé measured by those of individuals; and ex- f perience has shown the necessity of more summary and j stringent laws for the collection of the revenues of the government than have been found expedient to enforce the payment of debts between individuals.”</p> <p>In this case, however, the legislation of this State, under discussion, does not require us to proceed to the full extent of the authorities we have cited. No condition is imposed on the tax payer, to the litigation of the tax other than its prepayment to the collector. A full, complete and substantial remedy is provided in the statute itself, for the tax payer. The State consents that its officer, the tax collector, may be sued in its own courts for the tax. It provides, that if judgment in such suit shall be rendered against its officer, such judgment shall be paid to the tax payer from the treasury of the State. This broad remedy is made co-extensive with the remedies provided, in like eases, for all other citizens of the State.</p> <p>The plaintiff must execute a bond for costs before he can bring his suit against another citizen.</p> <p>In actions of replevin, the property is taken out of the possession of the defendant and delivered into the custody of the plaintiff. In many cases, the result demonstrates the property to have been that of the defendant.</p> <p>In cases of receivership, the true owner is often, during litigation, deprived, by orders of the court, of the possession and enjoyment of his own property; and compelled to pay compensation to the receivers for managing and controlling the same.</p> <p>Other illustrations of equal hardship to the true owners of property might be stated.</p> <p>The litigant tax payer is placed upon an equality with all other citizens. His rights and equities and remedies are precisely the same with theirs. Pending the litigation, the tax which constitutes the subject matter of the suit, shall be deposited in the treasury of the State.. It may be used by the State to pay its current expenses, and- its indebtedness. And if judgment shall be rendered in favor of the litigant tax payer, “the Comptroller shall issue his warrant for the same, which shall be paid in preference to other claims on the treasury.”</p> <p>Second. The main and leading legal propositions embodied in the petition, on the grounds of which relief is sought, as already seen, are these:</p> <p>1. The Louisville & Nashville R. R. Co., is a corporation, as it exists in Tennessee, chartered by, and organized under the laws of Kentucky; or, in other words, is a foreign corporation, within the limits of Tennessee.</p> <p>2. It is unconstitutional, and in violation of the Constitution of Tennessee, to tax the shareholders in said corporation, on their stock therein; and, in addition, to tax the property, real or personal, of any description, owned by said corporation, within the State of Tennessee.</p> <p>3. That the Tax Act of Tennessee, c. 118, 1873, and especially by force of the eighth section thereof, exempts said corporation from the taxes assessed and levied against it by the authorities of Sumner county.</p> <p>4. The taxes so levied are not assessed as required by - law, in the proper civil districts of said county.</p> <p>These several propositions we shall proceed to discuss in the order in which they have been stated.</p> <p>1. It is alleged that the Louisville & Nashville R. R. Co., is a corporation, as it exists in Tennessee, chartered by, and organized under, the laws of Kentucky; or, in other words, is a foreign corporation in Tennessee.</p> <p>The Louisville & Nashville Railroad Co., was first chartered by an act of the Legislature of Kentucky, approved March 5th, 1850: Pam. Acts, p. 5, et seq.</p> <p>By the second section of said act, the capital stock of said company is fixed at three millions of dollars, in shares of one hundred dollars each.</p> <p>Sec. 14 provides: “ That the President and Directors of said company are hereby vested with all powers and rights necessary to- the construction of a railroad from the city of Louisville to the Tennessee line, in the direction of Nashville, etc.</p> <p>Sec. 18 is, in part, this: “And that the said road or roads, with all their' works, improvements, or profits, and all the carriages, vehicles, and machinery for transportation used therein, and all other species of property thereunto belonging, are hereby vested in said company incorporated by this act, and their successors forever; and shall never be taxed beyond the rates of tax imposed upon real estate, estimated upon the prime cost of the proposed works.”</p> <p>The Legislature of Tennessee, on the 4th of Dec., 1851, passed an act entitled, “An Act to incorporate the Louisville & Nashville E. E. Co.: Sess. Acts of 1851, c. 23, pp. 28, 9.</p> <p>This act adopts substantially the provisions of the act of Kentucky aforesaid, of the 5th March, 1850, and, also, the amendments thereto, adopted March 20, 1851.</p> <p>Said corporation is specially embraced within the provisions of the General Improvement Law of Tennessee, by virtue of section 10 of said act: Sess. Acts, 1851-2, c. 154, pp. 204, 215; and c. 62, pp. 63-4; 1855-6, pp. 57-8; Priv. Sess. Acts, 1857-8, pp. 18, 21; Sess. Acts of 1857-8, c. 163, pp. 386-390.</p> <p>The title of this last act is: “An act to amend the charter and several acts amendatory thereto, passed by the Legislatures of Tennessee and Kentucky, incorporating a company to construct a railroad from the city of Louisville to the city of Nashville.”</p> <p>Sec. 14 is;: “That it shall be lawful for any sheriff, coroner, or constable, to levy upon and sell, as other personal preperty, any share or shares in any railroad or turnpike in this State, belonging to any execution debtor or corporation, against whom they hold an execution: Code, 1489, 3034.</p> <p>It seems diflfcult, in view of this legislation, and the acts of the Louisville & Nashville E. E. Co., to resist the -conclusion, that within the limits of Tennessee, said railway is a corporation of this State, deriving its franchises, powers and privileges from said legislation, and not otherwise: Ohio & Mississippi R. R. Co. v. Wheeler, 1 Black, 286,</p> <p>In the • case last cited, Chief Justice Taney, in de- ' livering the opinion of the Court, said: “ It is true, that a corporation by the name and style of the plaintiffs appears to have been chartered by the States of Indiana and Ohio, clothed with the same capacities and powers, and intended to accomplish the same objects, and it is spoken of in the laws of the states as one corporate body, éxercising the same powers and fulfilling the same duties in both states. Yet is has no legal existence in either state, except by the law of the state. And neither state could confer on it a corporate existence in the other, nor add to or diminish the powers to be there exercised. It may, indeed, be composed of and represent, under the corporate name, the same natural persons. But the legal entity or person, which exists by force of law, can have no existence beyond the limits of the state or sovereignty which brings it into life and endues it with its faculties and powers.” See the Delaware E. E. Tax, 18 Wall., 206; Tallmadge v. The North Am. Coal & Hans. Co., 3 Head, 337; Sprague v. Hartford It. S. Co., 5 E. I., 233; Mississippi It. II. Co. v. Cross, 2 Ark., 443; Hardy v. Merriwether, 14 Ind., 203; Angel & Ames on Corp., (9th Ed.) § 633; Bank of Augusta v. Earle, 13 Peters, 519.</p> <p>2. It is alleged in the petition, that is unconstitutional, under the Constitution of Tennessee, to tax the shareholders in said corporation, on their stock therein, and in addition, its property, real or personal.</p> <p>This position, as we understand it, is advanced, independently of' the Tax Act hereafter to be considered.</p> <p>This brings us to consider, what is stock in a railroad company, and what is capital stock?</p> <p>Angelí & Ames lay down the doctrine on these subjects thus:</p> <p>“ One of the principal points of view, as it has been already stated, in which a joint-stock corporation may be regarded, is in relation to its stock. By the term joint-stock corporation, we would be understood to mean such a corporation as has for its object a ■dividend of profits among its stockholders. A corporation of this sort is invariably empowered to raise a certain amount of capital, by the mutual subscriptions ■of its members, and this capital is divided into shares, which are made to vest in the subscribers according to their respective contributions; and they entitle the holders of them to a corresponding proportionate part of the profits of the undertaking. * * * *</p> <p>A share in one of these companies may be defined to be a right to partake, according to the amount of the party’s subscription, of the surplus profits obtained from the use and disposal of the capital stock of the company to those purposes for which the company is constituted. It is believed to be not unusual for the act of incorporation to provide that this interest shall be personal property, though it must be so regarded independently of any enactment to that effect; and this, notwithstanding it arises, in a measure, out of realty, it being the surplus profit only that is divisible among the individual shareholders. The land, buildings, etc., of canal, turnpike and railroad companies, are the mere instruments whereby the joint-stock of the company is made to produce that profit; and, moreover, belong exclusively to the corporate body, ■which is altogether á separate person from the individual members ”: Ang. & Ames on Corp., (9th Ed.) §§ 556-7; Bradley v. Holdsworth, 3 Meeson & Welsby, 334; Waltham v. Waltham, 10 Met., 595.</p> <p>The same principles were ruled in the case of the Union Bank of Tennessee v. The State, 9 Yer., 490.</p> <p>In that case the Court said: ‘But this Court, in the case of Brightwell, adm’r, v. Mallory et ais., has said, “that is a mistake to suppose that the stock of an individual consists of so much money owned by him in bank; the money in the bank is the property of the institution, and to the ownership of which the stockholder has no more claim, than a person who is not at all connected with the bank. The stockholder has an entire and perfect ownership over his own stock, and may sell and transfer’ it to whomsoever he pleases, and from doing which the bank has no power to restrain him.’ It necessarily follows that the capital stock of the bank can not be taxed as the property of the stockholder, as he has no legal title to any portion of' it, but only the immediate right to receive his share of the dividends as they are declared, and the remote right to his share of the effects on hand at the dissolution of the institution.”</p> <p>The decision was made in 1836, nearly forty years ago. It has never been called in question, so far as we know, since it has been rendered. On the contrary, another Convention was called in this State in 1870. It re-adopted, in substance, the provisions, on this point, of the Constitution of 1834. They did' this with a judicial exposition thereof, made as aforesaid, standing unquestioned for about thirty-four years.</p> <p>No principle is more plainly established, than that such re-adoption is made, with the distinct intention to embrace within the provisions of the Constitution, the .exposition thereof rendered by the highest tribunal in the State.</p> <p>In Van Allen v. The Assessors, 3 Wall., 384, the Supreme Court of the United States, say: “ The interest of the shareholder entitles him to participate in the nett profits earned by the bank in the employment of its capital, during the existence of its charter, in proportion to the number of his shares; and, upon its dissolution or termination, to his proportion of the property that may remain of the corporation after the payment of its debts. This is a distinct, independent interest or property, held by the shareholder, like any other property that may belong to him. Now, it is this interest which the act of Congress has left subject to taxation by the States, under the limitations prescribed, as will be seen on referring to it ” : National Panic v. Commonwealth, 9 Wall., 358; People v. Commissioners, 4 Wall., .244.</p> <p>In the case of the- National Panic v. Commonwealth, 9 Wall., 358, Judge Miller, in delivering the opinion of the Court, says:</p> <p>“In the several recent decisions concerning the taxation of the shares of the National Banks, as regulated by sections forty and forty-one of the Act of Congress of June 3d, 1864, it has been established as the law governing this Court, that the property or interest of a stockholder in an incorporated bank, commonly called a share; the shares in their aggregate totality being called sometimes the capital stock of the bank; is a different thing from the moneyed capital of the bank held and owned by the corporation. This capital may consist of cash, or of bills and notes discounted, or of real estate combined with these. The whole of it may be invested in the bonds of the government, or in bonds of the states, or in bonds and mortgages. In whatever it may be invested, it is owned by the bank as a corporate entity, and not by the stockholders. A tax upon this capital is a tax upon the bank, and we have held that when that capital was invested in the securities of the government it could not be taxed, nor could the corporation be taxed as the owner of such securities.</p> <p>On the other hand, we have held that the shareholders, or stockholders, by which is meant the same thing, may be taxed by the states on shares so held by them, although all the capital of the bank be invested in Federal securities, provided the taxation does not violate the rule prescribed by the act of 1864”: Queen v. Arnwud, 9 Adolphus & Ellis, (N. S.) 806.</p> <p>Now, we have selected for the purpose of this argument, on this point, the strongest cases to be found —cases in which the capital stock of the corporation was positively exempted from taxation — and in which, nevertheless, the shares of stock, are held subject to taxation as the distinct, independent, and private individual property of the stockholders. In this State we have seen that such shares are by statute declared to be personal property, and, as such, subject to execution.</p> <p>No substantial distinction exists between a bank corporation and a railroad corporation. Angelí & Ames, as already shown, place all joint stock corporations, in this respect, on the same footing: Richmond v. Daniel, 14 Gratt., 385; Savings Bank v. Nashau, 46 N. H., 398; Dwight v. Mayor, 12 Allen, 322; Redf. Sup, to Law of Railways, 507-10; The Delaware Railroad-Tax, 18 Wall., 229; State v. Petway, 2 Jones’ Eq.. (N. C.) 396.</p> <p>In this case, if there had been a positive exemption of the capital stock of the Louisville & Nashville Railroad Company, from taxation, in its charter, such exemption would not have prevented the State from taxing the individual shares of the stockholders.</p> <p>We conclude, consequently, that the taxation of the individual shares of the stockholders, residents, and citizens of Sumner county, Tennessee, in the Louisville & Nashville R. R. Co., all other questions aside, was constitutional and legal; and that such taxation interposes no objection to the taxation of the property of said corporation by the State, or to the assessment sought to be superseded in this case.</p> <p>But we add: the stockholders are not parties to this proceeding. . Their rights, as such, are not involved. We have to deal with the corporation, as such. Certainly, the corporation, in this proceeding, can not be heard to complain that its stockholders, as such, have been unconstitutionally or illegally taxed.</p> <p>3. It is next insisted, that the Tax Act ' of Tennessee, approved March 25, 1873, exempts, and especially by force of the eighth section thereof, said corporation from the taxes assessed and levied against it.</p> <p>Our answer to the position last aforesaid, is as follows:</p> <p>1. Said act, and especially said eighth section, on a fair construction thereof, does embrace the railroad corporations of Tennessee, or the Louisville & Nashville R. R. Co.; and the provisions' of said act of 1873, other than said eighth section, do declare the property of said corporation taxable, and provide details for its assessment and taxation.</p> <p>2. The property of the corporation taxed in this case is not the capital of the Louisville & Nashville R. R. Co., within the sense of said eighth section, on the assumption said corporation is held to be embraced therein.</p> <p>3. Assuming that both these immediately preceding positions should be ruled against the. State, then we maintain, that said proviso, by its .terms real estate, includes all the property, which we contend is subject to be assessed and taxed.</p> <p>4. The exemption of any property by the Legislature of Tennessee, since the Constitution of 1870, except in the cases therein specified, is unconstitutional. The Louisville & Nashville R. R. Co., does not fall within any of said exceptions. The “corporations” therein specified are municipal corporations. Nor is there any exemption contained in the charter of said railroad company, or by virtue of any contract between said company and the State. The Constitution of the State provides, art. 2, s. 28: “All property, real, personal, or mixed, shall Be taxed.”</p> <p>The property of the corporation, and the property of the stockholders therein, are essentially distinct and separate property; and the taxation of the individual stockholder is no taxation of the corporation, and conversely. Then, where is the constitutional legislative authority to prescribe that the property of the stockholder shall be taxed, and the property of the corporation shall not? We shall not return to this proposition.</p> <p>Sec. 1 of the act of 1873, is: “ That all property, real, personal, and mixed, shall be assessed for taxation, except such as is declared exempt in the next section.”</p> <p>See. 2 defines all exemptions; and the property of railroad corporations is not among them, in any aspect.</p> <p>Sec. 4 provides as follows: “That the basis of all assessments shall be as follows:</p> <p>“ 1. To assess the property to the person or persons owning, or claiming to own the same, on the 10th day of January, of the year for which the assessment is made, if known; if not, then to unknown owners.</p> <p>“ 2. To assess real property at its market value, on a credit of one and two years, deducting fifteen per cent, in gross.”</p> <p>The words “ person hr persons,” in the foregoing sub-section, embrace a corporation: Code, 50: Angelí</p> <p>& Ames on Corp., §‘ 441; People v. TJticá Insurance Co., 15 John., 382; Louisville & Nashville P. P. Co. v. Commonwealth, 1 Bush, (Ky.) 250.</p> <p>Sec. 5 of said act provides, “that in assessing real estate, the following shall be shown;</p> <p>“ 3. The value of the land, or town lots, including improvements.”</p> <p>Sec. 14 is: “ That this act shall not be so construed, and shall not so operate, as to exonerate or release from taxation, any company or corporation whose charter exempts stock and shares thereof from taxation ; but it is hereby enacted, that in all cases where such stock is exempted, such company or corporation shall be assessed in such way as may be lawful.”</p> <p>It is manifest, that if the position assumed in the petition be correct, and our argument against the position erroneous, to the effect, that the Louisville & Nashville E. E. Co., was organized in Tennessee, under the authority of the State of Kentucky; and that it is simply a foreign corporation, doing business with the consent of the Legislature of Tennessee, in this State, then said eighth section, now under review, has no application; for said section expressly applies to corporations, “ organized under the authority of this State or the United States.”</p> <p>We recognize the force of the cáse of Bedford v. The Mayor and City Council of Nashville, 7 Heis., 409. That case is based on the act of 1868-9, c. 45, s 9. Sess. acts, p. 66, similar to the above, and, with íthé exception of the words, “or any other joint stock company, organized under the authority of this State or of the United States,” a substantial copy from the National Bank Acts, passed by Congress, one on the 3d of June, 1864, and the other on the 10th of February, 1868: 13 U. S. Statutes at Large, 99; 15 U. S. Statutes at Large, 34.</p> <p>This case of Bedford v. The M. & C. C. of Nashville, held that the Nashville Gas Light Co., a corporation organized for the purpose of supplying the city of Nashville with gas, having its office and place of business, within the corporate limits of said city, was a stock company embraced within said ninth section.</p> <p>But a railroad corporation extending through counties, and, it may be, states, is quite a dissimilar corporation, and the reasons on which said eighth section rests, as applicable to the one class of corporations, are very different as applied to the other class. Physical locality and territorial occupancy of the corporations, are fundamental ideas in that section. Take this language : “ Said shares shall be included in the valua-</p> <p>tion of personal property of such stockholder in the assessment of state, county, or municipal taxes, at the place, town, ward, or district where such bank, banking association, or other corporation is located, and not elsewhere, whether said stockholder reside in said place, town, ward, or district, or not, but not a greater rate than is assessed upon other moneyed capital in the hands of individuals in the State.”</p> <p>Here, we have all the territorial phraseology essential to carry out the idea embraced in said acts of Congress, with the words necessary to superadd the other corporations, which belong to the same class with banks. These are place, town, ward, or district, and not elsewhere. Their correlatives are county and municipal.</p> <p>“It is a well settled rule of' construction, that the real intention of the law-makers, when accurately ascertained, will always prevail over, the literal sense of terms. The case of The State v. Clarksville Turnpike, 2 Sneed, 88, furnishes an accurate statement and fine illustration of the rule, that the real intention of the makers must prevail over the literal sense of the terms. The owners of the turnpike road were allowed by the words of the charter, to 'erect a toll-gate within two miles of Clarksville, and appoint a toll-gatherer thereat.’ The Court, ignoring a strict adherance to the literal meaning of the words, 'within two miles of Clarksville,’ but giving proper force to the intention as deduced from the subject matter, the reason, and spirit of the provision, held that the owner could not place the gate nearer to the town than the two-mile post; See Potter’s Dwarris on Statutes, 202-4; Sandman V. Beaeh, 7 Barn. & Cress., opinion by Lord Tenterden.</p> <p>In the Delaware Railroad Tax Case, 18 "Wall., 206, the Supreme Court of the United States, say: “And when such immunity,” [exemption from taxation,] “is conferred, or such limitation is prescribed by the charter of a corporation, it becomes a part of the contract, and is equally inviolate with its other -stipulations. But before any such exemption or limitation can be admitted, the intent of the legislature to confer the immunity or prescribe tbe limitation, must be clear beyond a reasonable doubt. All' public grants are strictly construed. Nothing can be taken against the state by presumption or interference. The power of taxation is an attribute of sovereignty, and is essential to every independent government.” * * * *</p> <p>If the point were not already adjudged, it would admit of grave consideration, whether the legislature of a state can surrender this power, and make its action in this respect binding upon its successors any more than it can surrender its police power or its right of eminent domain. But the point being adjudged, the surrender when claimed must be shown by clear, Unambiguous language, which will admit of no reasonable construction consistent with the reservation of the power. If a doubt arises as to the intent of the legislature, that doubt must be solved in favor of the state ”: Commonwealth v. Eaton Bank, 10 Penn., 415; Brovidenae Ba/nkv. Billings, 4 Peters, 514; Charles B,iver Bridge v. Warren Bridge, 11 Peters, 420.</p> <p>Consider the fourteenth section in immediate connection with said eighth section, and it seems difficult to reach a conclusion variant from that on which we insist. "We repeat it in part: “That this act shall not be construed, and shall not so operate, as to exonerate or release from taxation, any company or corporation whose charter exempts stock and shares thereof from taxation”; but such company or corporation shall be taxed in “such way as shall be lawful.”</p> <p>It seems to us, that applying the foregoing rules of construction to said eighth section, and considering the entire provisions of the act, and particularly said fourteenth section, it is dificult to sustain the conclusion that the Legislature ever contemplated, by the terms used, to embrace within said eighth section, that class of corportions to which the plaintiff belongs.</p> <p>4. It is insisted that the assessments were not made in the proper civil districts of Sumner county.</p> <p>The 25th section of the tax act aforesaid, under which the assessments were made, provides: “That if any person, company, firm, or corporation in said county, have not been assessed as contemplated by the provisions of this act, or have been assessed an inadequate amount, it shall be the duty of said Chairman, or Judge, Clerk, Trustee, Sheriff, or Tax Collector, to cite said person, company, firm, or corporation, to appear before them for the purpose of being assessed according to law; and said Chairman, or Judge, Clerk Trustee, or Tax Collectpr, are authorized to make the proper assessment, “and cause the same to be entered upon the tax books for collection.”</p> <p>1. It is not. by any means clear that a special assessment under the twenty-fifth section aforesaid, is controlled by the sub-section 4 of section 4 of said act. The only direction contained in said twenty-fifth section is, that the assessor shall “cause the same to be entered upon the tax books for collection.” If the object had been to amalgamate the special assessments provided for with the district assessments, why was not such specific direction given? "What need is there that the assessment should be divided among the several civil districts through which the track of the road passes? The books go into the hands of one collector for the whole county.</p> <p>2. The provision of the act, requiring the assessment to be in the district in which the property is situated, is directory, and not imperative. The omission does not increase the taxes of the tax payer. If the property was assessed in the wrong county, then such error might subject the proper owner to additional or double taxation. The rates of taxation in ■wrong county might be higher than in true one. So, if a district tax was assessed and levied. But such a tax is unknown to our political system. Then, what harm can come to the property owner whose property extends through a number of civil districts in a county, in the event his property should be assessed as an entirety, instead of assessing it, in parts, in each civil district: Sellers .v Fite, MS.; Johnson v. Williams, 2 Tenn., Cooper’s Ed., 178; Davis v. Bryan, 7 Yer., 88; Crowder v. Sims, 7 Hum., 259; Cooley’s Const. Lim., 74-8.</p> <p>3. Again, sec. 569 of the Code provides: “When several tracts or parcels of land belonging to the same person lie contiguous, forming one entire tract, the whole may be included in one valuation, and so extended.” This assessment falls within the reason, scope and spirit of said section.</p> <p>Third. The provisions of the charter of the Louisville & Nashville R. R. Co., adopted as aforesaid by the Legislature of Kentucky, in regard to the taxation of said corporation, have no binding force in this State. The Legislature of Tennessee did not, in re-adopting said charter, substantially, in this State, adopt said provisions on the subject of taxation. The legislation of Tennessee is untrammeled and unlimited by any thing contained in the laws of Kentucky on that subject: The Delaware Railroad Tax, 18 Wall., 206.</p> <p>Fourth. The taxes levied, in this case, and authorized to be levied by the Tax act of 1873, aforesaid, and the laws of Tennessee, on the Louisville & Nashville R. R. Co., are not obnoxious to any prohibition contained in the National Constitution, or any legislation of Congress: Paul v. Virginia, 8 Wall., 168; Ducat v. Chicago, 10 Wall., 410; The State Freight Tax, 15 Wall., 232; The State Tax on Railway Gross Receipts, 15 Wall., 284.</p> <p>Fifth. The next subject of inquiry is in regard to the rule of assessment of the real estate and fixtures of the Louisville & Nashville R. R. Co., in the State of Tennessee.</p> <p>This rule is fixed by the Constitution of the State, and the acts of the Legislature aforesaid, adopted to execute and carry out the provisions of the Constitution. It is the universal rule of real value and uniformity.</p> <p>The Supreme Court of Kentucky, in the case of the Louisville &' Portland Canal Co. v. Commonwealth, 7 B. Monroe, 160, announce these principles: “ The Tax Commissioner of one of the districts of Louisville, in 1846, valued, and assessed one hundred acres of land, owned by the Louisville & Portland Canal Co., with the improvements thereon, including the canal, at one million of dollars. An appeal was taken from the assessment, by the company, to the County Court, under the last clause of the statute of 1819, (2 Stat. Law, 1376,) and a motion made to reduce the valuation to one hundred thousand dollars. The motion failed by a division of the Court, and the company have appealed to this Court.</p> <p>“ The proof shows clearly, that if the canal be embraced and estimated in the valuation, that the amount will at least equal, if not exceed, the value found by the commissioner. That the cut or canal, together with all locks, dams, bridges, and houses, should be taken into the estimate in fixing the value, we can not doubt.</p> <p>“The 7th section of the statute of 1831, (2 Stat. Law, 1385,) provides, ‘ that each person listing lands or town lots for taxation, as now directed by law, shall also add to said list, the value of said lands or town lots, considered in their improved state, and including all their improvements thereon, attached to the freehold, of any kind or description.’ The language of this statute is broad enough, and was no doubt intended by the Legislature to embrace any and every kind of addition or amelioration which may be made to or upon lands or town lots, for the use of, or enjoyment of man, or the issues or profits arising from the same. All such improvements add to the value of the freehold, and should be estimated in the valuation of the same for taxation. And whether such lands, with their improvements, belong to an individual or a corporation, they are equally subject to taxation according to their increased value.</p> <p>“Had the land through which the canal has beeni excavated, been owned by an individual, with capital sufficient to make the canal, locks, etc., there could be no doubt that he would have had the right to do so, and to exact tolls at his discretion, from all those who might choose to use the same in avoiding the dangers of the falls. And' if so, he surely would be subject to taxation on the property thus increased in value by the improvements and consequent increase in value, by reason of the issues and profits springing out of the same. If so, we can see no good reason why a corporation owning the same property, should not be subject to taxation in the same manner and at the same valuation, as if owned by an individual. The charter contains no restriction on the right of taxation, which is a sovereign right, and should never be regarded as surrendered, limited or restricted in the grant of a charter or creation of a corporation, unless there be express terms of surrender, limitation or restriction. The property of the corporation lies in the state, and is protected by the laws of the state, and may be taxed here whether the shareholders live here or elsewhere, as the real estate, with ihe improvements, of individuals lying here may be taxed, whether the owners live here ' or elsewhere.</p> <p>The rule laid down by the Supreme Court of Illinois, in the case of The State of Illinois v. The Illinois Central Railroad Co., 27 111., 64, is thus stated: “This clause has been understood to mean, the value at the time of taxation or assessment. Values are fluctuating and changable, as all experience shows. Nor is it easy, at any one period of time, to lay down a general and satisfactory rule of certain application, in all cases, for the purpose of ascertaining the value of many kinds of property subject to taxation. Where property has a known and determinate value ascertained by commerce in it, as in most kinds of personal property, or fixed by law as money, there can be no difficulty. But there are many kinds of property, as to which the assessor has no such satisfactory guide. Such is peculiarly the case with railroad property, and other similar property, constructed not only for the profit of the owners, but for the accommodation of the public, under the sanction and by the exercise of the sovereign power of the state. In such cases the inquiry should be, what is the property worth, to be used for the purposes for which it is constructed, and not for any other purpose to which it might be applied or converted, or for which it ihight be used. In such cases, if the property is devoted to the use for which it was designed, and is in a condition to produce its maximum income, one very important element for ascertaining its present value is discovered, and that is its net profits. When property is thus improved, it is manifest that it is more or less valuable, as it yields a greater or less profit, in its productive and commercial use.”</p> <p>In assessing real property belonging to a railway company, consisting of a strip of land but a few rods in width, upon which the railroad track is located, with the necessary stations, buildings, etc., the land should not be assessed as an isolated piece of property, but as part of the whole railway; and its value should be estimated in connection with its position, and the business and profit derived therefrom: The People v. Barker, 48 N. Y., 70; 2 American Railway Reports, 149. .. •</p> <p>Judge Redfield (1 Red. Amer. Railway Cases, 497) says: “The subject of the taxation of corporations is well discussed, and learnedly and carefully defined, by Mr. Justice Wayne in delivering the opinion of the court: Gordon v. The Appeal Tax Court, 3 How., <U. S.) 133.</p> <p>“‘The franchise is their corporate property, which, like any other property, would be taxable if a price had not been paid for it. * * The capital stock</p> <p>is another property corporately associated for the purpose of banking, but in its parts is the individual property of the stockholders, in the proportion they may own them; and being their individual property, they may be taxed for it, as they may for any other property they may own. A franchise for banking is, in every state in the Union, recognized as property. The banking capital attached to the franchise is another property, owned in its parts by persons, corporate or natural, for which they are liable to be taxed, as they are for all other property, for the support of government.5 55</p> <p>In Wilmington Railroad v. Reid, 13 Wall., 268, it is said: “Nothing is better settled than that the franchise of a private corporation — which, in its application to a railroad, is the privilege of running it and taking fare and freight — is property, and of the most valuable kind, as it can not be taken for public use even without compensation. It is true it is not the same sort of property as the rolling stock, road-bed, and depot-grounds, but it is equally with them covered by the general term, ‘the property of the company,’ and therefore equally within the protection of the charter”: The State Freight Tax, 15 Wall., 232; Veazie Bank v. Fenno, 8 Wall., 547; West Fiver Bridge Co, V. Fix, 6 How., 529; 2 Kent’s Comm., 11th ed., 303; Angelí & Ames on Corp., 9th ed., § 4; The Monroe Savings Banlc v. The City of Foohester, 37 New York, 367.</p> <p>It is thus seen that the component elements of value of a railroad corporation are these:</p> <p>1. The capital stock; 2. The corporate property: 3. The franchise of the corporation; 4. The individual stock of the shareholders.</p> <p>The corporate property, in the above classification, may be sub-divided as follows: 1. The land itself;</p> <p>2. Road-bed and superstructure, including cross-ties, iron, side-tracks, etc.; 3. Bridges; 4. Depot-grounds</p> <p>and depot-houses, and all other improvements, including water-tanks, etc.; 5. Rolling stock, etc.</p> <p>These various elements of value are to be assessed and taxed as a railroad.</p> <p>Another fact to be regarded in fixing said value is the profits of the railway company.</p> <p>And still another consideration, which the assessor might look to in determining the value of the corporate property, is its cost. The last fact is not of itself a controlling one. The railway may have cost too much or too little. It may have increased or depreciated in value since it was built.</p> <p>In the case of Cook y. The Rockford, Rock Island & St. Louis Railroad Go., recently decided, and not yet reported, except in pamphlet form, the Supreme ■Court of Illinois say: “ There is, moreover, an almost insuperable difficulty which must attend all attempts by local assessors to assess the capital stock, franchise, roadway and rolling stock of most railroad companies. Such roads are usually located through several counties. The cost of construction in a particular town or county affords no criterion of the value of that portion of the road, for every mile of the road is equally indispensable to its existence as a whole, and contributes, proportionally, to its principal earnings. Local improvements may, indeed, vary, and they are required to be assessed by the local assessors; but the road and its equipments constitute a single, entire property. In determining the value of such property, the question is neither one of original cost nor of the intrinsic value of the various items of which the road and its equipment is composed, taken separately; but what is It worth, with all its capacities and facilities; as a railroad? The franchise- extends to the entire corporate property, and it is not possible that it can be divided. It must, if assessed at all, be assessed as an entirety, and this, as we have already shown, may be in connection with the'” property to which it is attached”: Railroad Co. v. Peniston, 18 Wall., 5.</p> <p>Sixth. We maintain that the rolling stock is a part of the road — constitutes, in the sense of the law, fixtures thereto; and that the real, actual, aggregate value thereof must be apportioned to the road, in its entire length of 185 miles, from Louisville to Nashville.</p> <p>The common law is progressive; it expands to meet the new and varied exigencies of society and civilization; and the enlightened courts of our own State have, from time to time, recognized and applied this principle: Jaeob v. The State, 3 Hum., 519.</p> <p>This question came before the Supreme Court of New York in the case of The Farmers’ Loan and Trust Oo. v. Hendriehson, 25 Barb., 484. Strong, Judge, said: “The property of a railway company consists mainly of the road-bed, the rails upon it, the depot erections, and the rolling stock, and the franchise to hold and use them. The road-bed, the rails fastened to it, and the buildings at the depots are clearly real property. That the locomotives, and passenger, baggage and freight cars, are a part, and a necessary part, of the entire establishment, there can be no doubt. Are they so permanently and inseparably connected with the more substantial realty as to become constructively fixtures? Railways being a modern invention, and of a novel character, we have no decisions upon this question, and those relating to and governing old and familiar subjects do not absolutely control us, although we must necessarily resort to them as guides. Judge Weston well remarks, in Farrar v. Stachpole, 6 Greenl., 157, that modern times have been fruitful of inventions and improvements for the more secure and comfortable use of buildings, as well as of many other things which administer to the enjoyment of life. "Venetian blinds, which admit the air and exclude the sun, whenever it is desirable so to do, are of modern use; so are lightning-rods, which have now become common in this country and in Europe. Those might be removed from buildings without damage; yet, as suited and adapted to the buildings upon which they are placed, and as incident thereto, they are doubtless part of the inheritance, and would pass by a deed as appertaining thereto.</p> <p>“The general principles of law must be applied to new kinds of property, as they spring into existence in the progress of society, according to their nature and incidents, and the common sense of the community. It may be that if an appeal should be made to the common sense of the community, it would be determined that the term 'fixtures’ could not well be applied to such movable carriages as railway cars. But such cars move no more rapidly than do pigeons from a dove-cote, or fish in a pond, both of which are annexed to the realty. Judge Cowen admits, in Walker, v. Sherman, that a machine, movable in itself may become a fixture, from being connected in its operations by boards, or in any other way, with the permanent machinery. It • results from many cases that it is not absolutely necessary that things should be stationary in any one place or position, in order that they should be technically deemed fixtures. The movable quality of these cars has frequently, if not generally, induced the opinion that they are personal property. Hence, railway mortgages of rolling stock have, as I understand, been generally filed in the offices of the clerks of all the towns through which the roads pass. That was undoubtedly the more prudent course, as it saved any question as to the character of the property. Even the learned counsel for the plaintiffs has gone no further than to denominate the cars ‘quasi’ fixtures. Public opinion, however, although respectable in matters of fact, is an unsafe guide as to legal distinctions.</p> <p>“That railway cars are a necessary part of the entire establishment, without which it would be inoperative and valueless, there can of course be no doubt. Their wheels are fitted to the rails; they are constantly upon the rails, and except in cases of accidents, or when taken off for repairs, nowhere else; they are not moved off the land belonging to the company; they are peculiarly adapted to the use of the railway, and in fact can not be applied to any other purpose; they are not like farming utensils, and possibly the machinery in factories and many of the movable appliances to stores and dwellings; the objects of general trade; they are permanently used on the particular road where they are employed, and are seldom, if ever, changed to any other. Many of these are strong characteristics of the realty; some of them have often been deemed conclusive.</p> <p>“ In Imshington v. Sewell, 1 Simons, 435, 480, Vice Chancellor Hart was inclined to think the devise of a West India (real) estate passed the stock of slaves, cattle and implements, because such things are essential to render the estate productive, and denuded of them, it would rather be a burden than a benefit. The reason assigned appears to be sound; but the Vice Chancellor carried the doctrine further than the cases would warrant, as slaves (in the West Indies), cattle and implements of husbandry, were objects of general commerce. In the case of The King v. The Inhabitants of St. Nicholas, Caldecott, 276, (cited by Judge Cowen, 20 Wend., 269) it was decided that a steelyard, being in a machine-shop, was a fixture. Lord Mansfield said: 'The principal purpose of the house is for weighing. The steelyard is the most valuable part of the house. The house, therefore, applied to this use, may be said to be built for the steelyard, and not the steelyard for the house/ Surely this reasoning is equally applicable to the cars on a railway. The railway is constructed expressly for the business to be done by the cars, and what evinces their essentiality in a strong point of view in this case is, that there can be no tolls, which are expressly mortgaged, without them. It is remarked by Mr. Dane, in his Abridgment (vol. 3, p. 157), that certain articles were 'very properly a part of the real estate and inheritance, and pass with it, because not the mere fixing and fastening to it is alone to be regarded, but the use, nature and intention/ Judge Weston, in the case which I have cited from 6 Greenl., in speaking of a saw-mill, said: 'If you exclude (from the realty) such parts of the machinery as may be detached without injury to the other parts, or to the building, you have it mutilated and incompíete, and insufficient to perform its intended operations/ Surely all this would be true of a railway, for it is nothing without its locomotive vehicles. It is true that no mechanical or agricultural business can be carried on to much extent without tools or farming implements, and such tools and implements are universally conceded to be personal property; but then such tools or implements are not peculiarly adapted or confined to any particular establishment, but may be used upon them generally, and are subjects of frequent barter. It is different, I admit, as to the stationary machinery in a factory, and articles of a similar character in a dwelling-house, which are not absolutely fastened; but although they are considered as personal property for reasons peculiar to them, and not of universal application, yet such reasons do not seem to me sufficient, while many things become fixtures without physical annexation.”</p> <p>Judge Bedfield says of this case: “This opinion is certainly plausible, and it is impossible to say that the views here maintained will not, or may not, ultimately prevail. There is, no doubt, justice and convenience in such a view. But it seems to us somewhat a departure from the general law of fixtures in this country, and at variance with generally received notions upon that subject, at present, when carried to the extent of declaring the rolling stock of a railway a fixture ”: 2 Bedf. on Bailw., (4th ed.) 483.</p> <p>The same doctrine is supported by the courts of Illinois. It was held in the case of Titus v. Mabee, 25 111., 257, that railroad cars and locomotives were, when on the road for use, prima facie■ a part of the realty, and could not be severed and sold under an execution. This case was reaffirmed in the subsequent case of Titus v. Ginheimer, 27 111., 462.</p> <p>In Palmer v. Forbes, 23 111., 301, the court say: “We are not departing from the common law rule, when we hold that the rolling stock and material provided for the repair of the track, are a part of the real estate. It is not necessary in all cases that things should be actually affixed to the freehold, in order to constitute a part of it for the purpose of transfer and sale. Take the case of mill-stones, which are constantly being taken up and sharpened: when up, they are as much a part of the mill as when in their beds, and would pass by a deed or mortgage of the mill, if they had been, in fact, detached for six months. So of various kinds of machinery, as a screw, or cutting engine, or lathe, where á great multitude of different sized pinions or cutters are kept on hand, but only one of which can be used at a time. All of these are necessary to make the complete machine, and. would pass by a sale of the factory as being a part of it, but with no more propriety than is the rolling stock a part of the railroad. No road can be complete without its machinery, any more than would a cotton or grist-mill.”</p> <p>In Indiana, in the case of the Toledo & Wabash Pailway v. Lafayette, 22 Ind., 262, it is held, that a railway company should be taxed for its road, as an entirety, including everything in any way used by the company in running or operating it: Louisville & New Albany JR. JR. Co. v. The State of Indiana, 25 Ind., 177. See MoGraw v. Memphis & Ohio JRailroad Co., 5 Cold., 434; 1 Washburn on Neal Property, (3d ed.) §. 10; Minnesota Co. v. St. Paul Co., 2 Wall., 509, and note.</p> <p>We now proceed to summarize the propositions we have advanced and sought to maintain in this argument:</p> <p>1. The act approved March 21, 1873, c. 44, prohibits this proceeding, and is constitutional and valid.</p> <p>2. The Louisville & Nashville Nailroad Company is a corporation, incorporated by the Legislature of Tennessee, and derives its franchises, powers and privileges from the legislation of this State, to the extent said corporation is run and operated within its limits.</p> <p>3. The stock in said corporation, owned by individuals, is their separate, distinct and individual personal property; and such of them as reside in Sumner county are taxable on said shares, according to their real value, as on their other personal property.</p> <p>4. The eighth section of .the tax act of 1873 does ■not embrace railroad corporations.</p> <p>5. If said eighth section does embrace railroad corporations, then the exemption of the capital does not exempt the other corporate property, which property has been assessed and taxed in this case.</p> <p>6. The, proviso to said eighth section authorizes tbe taxation in this case, as the real estate of said corporation.</p> <p>7. Said exemption of the capital is unconstitutional.</p> <p>8. The objection that the assessment of the corporate property was not made in the several civil districts of Sumner county, if so made as insisted, neither renders said assessment void or voidable.</p> <p>9. The provisions contained in the charter of incorporation, passed by the Legislature of Kentucky, in regard to the taxation of the Louisville & Nashville Railroad Company, are not in force in this State.</p> <p>10. Nothing contained in the Constitution or laws of the United States contravenes the tax.</p> <p>11. The real estate and fixtures of the corporation in Tennessee are subject to taxation, in the manner and to the extent which have been pursued and adopted in this case.</p> <p>12. The rule of valuation of said taxable corporate property is prescribed by the Constitution and laws of Tennessee, at its real and actual value.</p> <p>13. To make said valuation, that part of the road lying in Sumner county should be estimated at its true value as a railroad, having Louisville and Nashville as termini. The property which should be included has already been specifically stated in the argument.</p> <p>14. The rolling stock is a part of the realty. It is a fixture thereto. The aggregate value thereof should be apportioned to each mile of the road in Kentucky and Tennessee, namely, 185, as alleged in the petition.</p> <p>The magnitude and importance of these questions can not be overestimated, as they regard the people of Tennessee. Their public debt of all kinds will not vary far from $25,000,000. This large debt, in -the main, has been incurred in aiding in the construction of the railroad system of Tennessee. Good faith, public honesty, and a wise public policy demand that this debt shall be paid. How can this be done, unless all the property in the State subject to taxation shall pay its proportion? It has been officially stated that the value of the railroad corporate property which will be subject to taxation during the present year, is $70,000,000: Killebrew’s Kesources of Tenn., 396.</p> <p>So far as we know, this is the first effort in the State to tax these railroad corporations. For years they have enjoyed the franchises conceded to them without contributing one dollar towards discharging the common burden. They are in fact, in a great part, the result of the munificent liberality of the people of Tennessee. The property, and the toil of the people, have, in a great measure, built them. The laws of the State have fostered and protected them. And now, after the State has abstained from taxation for a period varying from fifteen to twenty years, the first endeavor to make them contribute their reasonable part to the common- charge, is met by litigation.</p> <p>1. Plaintiff’s road-bed and superstructure represents its capital, which is exempt from taxation.</p> <p>2. But if taxable as real estate, it should have been assessed in the several districts where it is located, and not elsewhere.</p> <p>3. If taxable as real estate, it should have been taxed at its real value, and not upon the oppressive and exorbitant valuation that was placed upon it by the county. judge.</p> <p>I. The certiorari was the proper remedy for the ■correction of the errors in the assessment complained of.</p> <p>Where the valuation of the assessor is made upon correct legal principles, and the error is one of mere valuation, his action may be final; but where, as in this case, in arriving at his valuation, he proceeds upon erroneous principles, certiorari will lie to correct the errors of law committed by him: State v. Quaife, ■3 Zab., 89. His action in this regard is clearly judicial, and his conclusions can be reviewed by means ■of the writ of certiorari: State v. St. Louis County Court, 47 Mo., 594; State v. Clothier, 1 Vroom (N. ■J.), 352-353; C. N. JR. R. v. Butte Co., 18 Cal., •671; Swift v. Poughkeepsie, 37 N. Y., 516; People v. Assessors, 40 N. Y., 154.</p> <p>II. We insist that the road-bed, with its superstructure, represents the capital of the corporation ■originally paid in by the stockholders, and as such is expressly exempt from taxation under the laws of this State: Acts 1873, pp. 171, 173, s. 14; Const. 1870, art. 2, s. 28.</p> <p>As no other property in the- State of Tennessee is subjected to double taxation, it was thought by the Legislature to be both unjust and unconstitutional that the same property should' be once taxed to the corporation, which held but a technical legal title to it, and then taxed again through the shares of the stockholders, who were in substance and in equity the owners of it. Therefore, the assessment law was framed so as to tax it through, the shareholder and exempt the corporation; unless it appeared that the shareholder was exempt from taxation, and in that event the corporation was taxed. In this way the property would be taxed either through the corporation or the shareholders, but it could be taxed but once; and as our shareholders have been taxed to the full market value of their shares, the Louisville & Nashville Railroad Co., as a corporation, can not again be taxed in regard to the very property represented .by those shares, and upon which their value depends.</p> <p>Ve are aware of the decisions of this Court, and of the United States Supreme Court, to the effect that the corporation is the legal owner of the capital, and of all the property of the corporation, and can deal with it as absolutely as a private individual can deal with his own,’ while the stockholders are the owners of their respective shares of stock, which are a distinct independent interest, or property held by the stockholder like any other property that may belong to him. We are also aware that those cases hold that the shares of the stockholder may be taxed, though the capital of the corporation may be invested in government securities, which are exempt from taxation. . Rut those cases do not hold that where the capital of the corporation is invested in property which is subject to taxation, and which, as a fact, is taxed to the corporation, it can again be taxed through the shares of the . stockholders in a state ' where the Constitution requires equality and uniformity in taxation. And even if it were conceded that the Constitution was not in the way, and that the Legislature, if it saw proper, could tax the corporate prop-' erty, first to the corporation, and then to the stockholder, it would not be compulsory upon the Legislature to exercise such unjust power, but it would have the clear right to forego its exercise and direct that it should be taxed but once, whether that be to the corporation or the shareholder.</p> <p>“The capital stock of a bank consists originally of the money paid in by the subscribers to the stock of the bank”: Connersville v. Bank, 16 Ind., 105; Union Bank v. State, 9 Yerg., 498. But this original fund does not remain as money, “it changes its form, and is represented by the notes of other persons or corporations”: 16 Ind., 105. “It may consist of cash, or of bills and notes discounted, or of real estate, combined with these. The whole of' it may be invested in bonds of the government, or' in bonds of the states, or in bonds and mortgages”: National Bank v. Commonwealth, 9 Wall., 359. But in whatever it may be invested it still remains the capital of the bank, and a tax upon that capital is a tax on the bank: 9 Wall., 359; 16 Ind., 105.</p> <p>A railroad company, having no banking powers, invests its capital or capital stock differently from a bank, “the whole undivided fund paid in by the stockholders, the legal right to which is vested in the corporation, to be used and managed in trust for the benefit of the members,” (9 Yer., 498) instead of being used by the corporation in discounting bills and notes, and purchasing bonds and mortgages, is employed in building and equipping its road, which represents the capital of a railroad corporation as completely as the notes and bills, bonds and mortgages represent the capital of a bank. To tax its capital and then tax its road, which represents that capital, is to tax the same thing twice; and to say that the State exempts the capital, and yet taxes the road, involves the absurdity that the law should, in the same word, tax and exempt from taxation the same identical thing: The Ordinary v. Central JR. JR., 40 Ga., 650; JBJannibal JR. JR. v. ShaeMett, 30 Mo., 558.</p> <p>We stand ready to show that every dollar of the capital of the Louisville & Nashville Railroad Co. was invested in its road; the shares of its stockholders in this capital are taxed by the State and the taxes paid; the assessment act says that this capital shall not again be taxed against the corporation, as to do so would be double taxation: Bangor JR. JR. v. JSarris, 21 Maine, 534; State v. Bentley, 3 Zab., 538, 539.</p> <p>But it will be said that the proviso to section 8 of the assessment act expressly directs that “the real estate ” owned by corporations shall be taxed: Acts 1873, p. 171. “The real estate” owned by a corporation, which forms no part of and is not represented by its capital, may be taxed of course. A railroad corporation, after exhausting its capital in building its road, may, from its surplus earnings, or from funds borrowed from others, purchase real estate and hold it like any other corporation; but such real estate would represent no part of its capital, and wonld be taxable under the proviso above cited: 40 Ga., 650, This is “the real estate” referred to in the proviso, and the operation of the proviso must be restricted to it, as upon any other construction the proviso would destroy the main section, at least to the extent of the real estate which is actually represented by the capital.</p> <p>Take the case of the North Nashville Real Estate Company, chartered by this State: every dollar of its capital was and is invested in a large tract of land adjoining Nashville on the north; it was bought with a view to speculation, but the scheme has proved unfortunate ; its stockholders are taxed and pay upon their shares — its capital is exempted by the assessment law; but can the land which represents the capital, and nothing but the capital, be taxed as “real estate” under the proviso, and these unfortunate stockholders compelled to pay another tax for the same thing through the name of the corporation ? If the real estate representing the capital of that company can. not be twice- taxed, why- is' it that our road-bed and: superstructure, which represents our capital, and as a fact is our capital, can be doubly taxed, when both assessments are made under the same law?</p> <p>III. But if-we were-to concede, for the sake of argument, that the, road-bed, with its superstructure, is real estate within the meaning of the proviso to-sec. 8 of the assessment ■ law,- and as such is taxable-to the company, still we insist that the county judge proceeded upon erroneous principles.- in making his assessment, which is exorbitant; oppressive and unjust.</p> <p>The assessment law requires that all real property shall' be assessed “ at its market value,” on a . credit-of one and two years,: deducting fifteen per cent, in gross: Acts 1873, p. 169, s. .4, ¶- 2. And the Constitution of 1870 requires that all property shall be taxed according to its value, * * so that taxes shall be equal and uniform throughout the State, and no one species of property from- which a tax may be-collected shall be taxed higher than any other species of property of the same'value: Const. Tenn., art. 2, s. 28. His Honor says - that he found out ■ from the reports of the company’s president, . that the road cost an average of $38,000 per mile, and that its net earnings were $5,467 per. mile; he estimated the length of the road ’ in Sumner county at- thirty-five miles, -and valued each-, of said - miles- at - a fraction over $27,000, which was found from an estimate upon the whole length of the road. From this it is manifest that in arriving at-his-valuation-he looked alone to • the cost of the road»’ - and its - net- ■ earnings. - We would like to know whether-any individual citizen of this State, who may have purchased land at the high prices of ,1865-66, was- taxed’ in 1873-74 upon -its original cost ? if so, he was most; grievously wronged. On the other hand, will the state ■ and county agree to confine their assessment for 1875 to the net earnings of the lands that were devastated by the grasshopper, or blasted by the drought of 1874? If they ■are unwilling to be governed by the net earnings in a season of general adversity, why should they be allowed to resort to it in times of general prosperity? And if the “original cost” ■ and “net earnings” are both thrown out when assessments are made upon private citizens, why are they to be regarded in assessing the property of corporations? Are odious individuals and corporate bodies (who have no votes) to be governed by one rule, while the mass of the ■community are favored with another? or are taxes to be equal and uniform, and every one to stand or :fall by the same rule or law that governs every other member of the body politic under similar circumstances? Vanmnt v. Waddell, 2 Yer., 260.</p> <p>In the case of the Chicago & N. W. R. R. v. Boone County, 44 111., 244, the supervisors were allowed by the inferior court to introduce certain evidence, including a report of the president of the company, to show what the road had cost. The Supreme Court of Illinois held that this was error; they say: “What property cost three years ago affords no evidence of its value to-day, and least ■ of all where the equipment of a railroad is concerned ”: 44 111., 245. The question for the assessor is, not what it originally cost, but what is its value on the day of assessment as compared with the valuations made against other-taxpayers. “Nothing would tend more to mislead a jury than evidence of what it cost”: 44 111., 246.</p> <p>As to the report made by the president of the railroad company, the court held it to be clearly incompetent, upon the ground that, being very voluminous, the bearing it had upon the case before the court had to be ascertained, if at all, by a careful analysis and dissection, to which a jury would scarcely be able to-subject it; besides, the statements contained in it were- ' not sworn to by the president, and if true, they could easily have been proved by witnesses under oath: 44 III, 247. In this case, even if the cost of the road could be looked to, there was no evidence of that cost before the county judge, except reports of the company’s president, which it is not pretended were sworn to. If these reports are thrown out, the assessment is without any legal evidence upon which to stand, and for that reason alone should be reversed.</p> <p>So far from the cost of a mile of railroad representing its. real value, it is frequently just the reverse. Other things being equal, that mile of road is most valuable to the company which approaches nearest to a straight line and to the ' level of the earth’s surface. Deep cuts, high fills, sharp curves, heavy grades, trestles, bridges and tunnels are the most costly parts of the line, and they require constant watching and repairs, with occasional renewals out and out; and yet they are of no more value to the road than other sections which required no more work than leveling the ground and' throwing up a bed for the track. The tunnel in- Sumner county probably cost more than all the balance of the road in that county.</p> <p>But if the cost of the road is to be the criterion of its value, the cost, instead of being arrived at from “an estimate upon the whole length of the road,” should have been confined to that portion of the road which lies in Sumner county. There is no pretense for assuming that the road passing through the rolling lands of Sumner county cost as much per mile as that part of. it which crosses the mountain ranges of Kentucky, and the large and numerous- rivers of that state, which are spanned by iron bridges of the most costly character. The cost of the road-bed as it runs through the sparsely settled poor lands of Sumner county, bears no proportion to the lands occupied in the cities of Nashville, Franklin, Bowling Green, Elizabethtown and Louisville, all of which is estimated' as a part of the “ whole length of the line.”</p> <p>The assessment law expressly requires that property shall be assessed “in the district or ward in which it lies”: Acts 1873, p. 169, s. 4, ¶ 4. The district of Sumner county in which the tunnel is located is entitled to the benefit of the fact that that portion of the road cost so much more than any other part of the road in that county. The cities of Nashville and Edgefield can not be required to share with the country districts of Davidson county the costly depots, round-houses, machine-shops and bridge, which are situated exclusively within their limits.</p> <p>The assessment law enacts that where any one has not been “assessed as contemplated by its provisions, or has been assessed upon an inadequate amount, the county judge is to make the proper assessment”: Acts 1873, p. 175, s. 25. We have just shown that the assessment “as contemplated by the provisions of the law,” is an assessment of the property “in the district or ward in which it lies,” and if no assessment of the road-bed and superstructure had been made in the several districts of Sumner county, the “proper assessment” for the county judge to make, was to assess the road-bed as it lies in said districts, and not an assessment in gross for the whole county. This is made manifest by the 43d section of the act, which requires the clerk of the county court to make out from the tax-books an aggregate statement, showing the value of all town lots, the number of acres and value of all tracts of land, and the value of all personal property. “This statement shall be made and the facts shown by civil districts and wards, and aggregated for the whole county for the items named”: Acts 1873, p. 179, s. 43. This statement can not possibly be made, unless the county judge makes his assessments by districts; and it is conclusive that the law intends that the real estate owned by railroads shall, like that of individuals, be assessed in the several wards and districts as town lots, or as “tracts of land” — the tax-books showing the “number of acres and the value of all tracts of land.”</p> <p>We' come next to examine the “net earnings” of a railroad as an element of its taxable value. If a railroad lies wholly within -the boundaries' of a single state, and all its profits are earned within . that state (as is the case with the English, railways, and with the railroad running from Nashville to Lebanon in this State), the taxation of the railroad may well be estimated upon the basis of its net earnings, the State levying the entire tax in the first instance, and making such distribution of it among the several counties as may seem just or equitable among them. In England it is distributed among the several parishes, not in proportion to the length of the railway, but in proportion to the actual earnings in each parish: 2 Redf. Railw., p. 179 (3d ed.); this is manifestly the only fair mode as between the several counties of the same state. The Louisville & Nashville Railroad Co. have but ten miles of road in Davidson county, while they have over thirty miles in Sumner — and yet their profits upon the Davidson county business is probably ten times as much as the profits upon the Sumner county business; and yet, if the net earnings were divided. between these two counties in proportion to the length of road within their respective limits, Sumner county would get three times as much tax from the road as Davidson.</p> <p>It is useless, however, to discuss the merits of a tax upon the net earnings of a railroad; for the Constitution of Tennessee requires property to be taxed according to its value, and permits no income tax, except .“a tax:upon incomes derived from stocks and bonds that are not taxed ad valorem,” Const., art. 2, s. 28. Even if the Constitution ,.were not in the. way> the Legislature would probably never levy an income tax, owing to the fact that odious and inquisitorial assessment laws are requisite for its collection. The people would not submit to an income tax upon themselves, and unless the mass of the community is taxed in that manner, corporations can not be subjected to it.</p> <p>Where the line of a railroad runs not only through several counties of the same state, but also through several states possessing distinct rights of sovereignty, a tax upon net earnings, which will be just alike to the states and the railroad, becomes impossible. The State of Kentucky has the_ same right as Tennessee to tax the net earnings of this road; and whether she insists upon levying her tax in proportion to the length of the road, or the profits earned in her state, she would get the advantage of . this State. This State might retaliate upon Kentucky by disregarding the proportion claimed by her; but it would be a cruel injustice' upon the railroad for Tennessee to impose a double tax upon earnings which the State of Kentucky had already taxed. The only safe plan to avoid conflicts between the states, and at the same time do justice between the states and the railroads, is to adhere strictly to our Constitution — tax only such property as is within our boundaries, and tax that as we tax all other real estate, by the number of acres and upon the value per acre.</p> <p>In the case of the Albany & Schenectady JR,. JR. Go. v. Osborn, 12 Barb. B., 223, 227, it appears that plaintiff’s railway ran between Albany and Schenectady, and was a fraction less than seventeen miles in length. A portion thereof, nearly ten miles in length, rail within the town of Watervliet. The principal office of the plaintiff was in the city of Albany. The defendants, who were the assessors of the town of Watervliet, assessed $250,000 as the valuation of that part of the railway which lay within the said town, being all the real estate belonging to the railway in said town, which sum the assessors arrived at by estimating the entire worth of the plaintiff’s road, considering the lucrativeness and income thereof, and taking the same proportion of said worth that the length of the said road in the town of Watervliet bore to. the whole length thereof. The actual value of that part of the plaintiff’s railway, including the land on which it was laid and the fixtures connected with the same, lying within . the said town, and detached from the remainder of the road, did not exceed $60,000, beyond which last valuation the plaintiff insisted it could not be legally assessed. The New York statute provides that “all real or personal estate liable to taxation shall be estimated and assessed by the assessors at its full and true value, as' they would appraise the same in payment of a just debt due from a solvent debtor.” Upon the foregoing state of facts the Supreme Court- of New York held “that no distinction was made between the property of a corporation and that of an individual;” that the assessors “are simply to ascertain the value of the land, and of the erections or fixtures thereon, irrespective of the consideration whether the road is well or ill managed, or whether it is profitable to the stockholders or otherwise. Such property is to be appraised in the same manner as the .adjacent lands belonging to individuals, and without reference to other parts of the railway. In estimating the value of an adjacent farm, it certainly would not be permitted to take into consideration the skill with which it was managed, nor the means bv which high prices were obtained for the produce. These would change with every occupant and perhaps with every year. If such a course were proper, two adjoining farms of equal extent and fertility, and equally distant from market, might be very unequally taxed in the same town, because the one was occupied by a poor farmer and yielded no profit, and because the other was managed with an amply rewarded skill and industry. Such a course of proceeding would levy an income tax, or at least a tax upon skill and thrift rather than upon the value of the land itself.” Under the statute the income of the road was not taxable; nor in the taxation of either its real or personal estate was the profitableness of the road to be taken into account. The court therefore held that the actual value of that part of the railway, including the land on which it was kid and the fixtures connected with the same, lying within said town, and detached from the remainder of the road, was the value at which it should be assessed.</p> <p>In the case of the Albany & West Stoekbridge E. E. Co. v. Town of Ganaan, 16 Barb., 244, 250, the plaintiff's railroad ran from the Hudson river in New York to the westerly line of the State of Massachusetts, a distance of about ‘ thirty-eight miles. On its route it passed for about nine miles through the town of Canaan in "the State of New York, and the quantity of land occupied by it in that town was ninety acres, worth about fifty dollars per acre, and with the erections, superstructure and fixtures upon the road in that town, did not exceed in value $45,000. The assessors nevertheless assessed it at $300,000, arriving, at that sum, as plaintiffs averred, by valuing the road at the cost thereof and estimating the income and productiveness thereof.</p> <p>The Supreme Court of New York, affirming- the case in 12 Barb., 223, cited above, held that it was '“the duty of the assessors to estimate the section of. the plaintiffs’ road within their jurisdiction at its full and true value. In ascertaining this value, the superstructure and fixtures, every thing annexed to the land, was to be taken into the account. But whether the stock was above or below par, or whether the business of the road was productive or unproductive, were questions with which the assessors had nothing to do.”</p> <p>In the case of the Sangamon & Morgan JR. JR. v. Morgan County, 14 111., 163, 167, the railroad extended -from. Naples in Scott county, through Morgan county, to Springfield in Sangamon county, in the State of Illinois, a distance of fifty-five miles in all, twenty-seven miles of which were in Morgan county. The entire road-bed was assessed at $125,000, .and Morgan county claimed the right to assess for state and county taxes on-27-55 of this amount. The Supreme Court of Illinois held, that the jurisdiction •of the county court to levy the tax did not extend beyond its own limits, and therefore their mode of valuation was improper. In the language of the court, “instead of valuing and assessing the twenty-seven miles of road which is situated in Morgan county, an undivided portion of the whole road was assessed and taxed. The valuation should have been of, and the assessment upon, that portion of the road which was situate in Morgan county.” “We can not know,” say the court, “nor is it even probable, that each mile or portion of the road was of equal value. It is not probable that each portion of the road was equally profitable or productive. One portion of the road may be badly constructed and another well constructed. One portion may have heavy grades and curves, and another portion be level and straight. In some places the land occupied by the road may be very valuable, while in other places it may be nearly valueless. All of these considerations must be taken into, account in ascertaining the value of any portion of the road. But admitting that each portion of the road was of equal value, still the valuation should have been of that specific part which was within the county, and not of an undivided part of the whole road, portions, of which are- within two other counties. A farm or a field might be divided by a county line, but- in such case the valuation should not be of the whole farm or field, and the assessment made upon such valuation in proportion to the quantity situated in the county for which the tax is levied. Each county must assess and tax the real property within its limits and no other.”</p> <p>In the case of the Chicago & N. W. JR. JR. Co. v. Boone County, 44 111., 244, the supervisors of Boone county were allowed to show in the inferior court that the railroad company had made a return to the county clerk of McHenry county for 1865 of their property in that county, from which it appeared that they had valued their track at $3,000 per mile; and the argument was, that, inasmuch as the track in Boone was in as good repair and capable of doing the same proportionate amount of business as that part of it running through McHenry county, therefore the value must be the same, and it should be assessed accordingly. But say the Supreme Court of Illinois: “ This, in our opinion, does not follow. So far as the return in McHenry county is concerned, non con-stat, but that it was proper and necessary to place that valuation upon it in order to put it on the basis established by the assessors of that county for assessing the property of individuals therein. What may have been just in McHenry county may not have been just at the time the return was made by the railroad in Boone county. So that they returned their property as. high as individuals in Boone county, they complied with the law as enforced against the taxpayers of Boone county and the same of McHenry county. Neither county furnishes a rule for the other.”</p> <p>In the case of JRegina v. Overseers of JPutney, 3 El. & Bl. in 107 Eng. Com. Law E., p. 108, the pipes and reservoirs of a waterworks company were so placed in the several parishes in which they were respectively situated, that the whole together formed one apparatus for the supply of Water to the customers of the company; a part'of such apparatus being rateable to the poor rate in each parish. It was insisted that the value of the whole apparatus in all the parishes in which it was situate should be ascertained, and then divided among said several parishes according to the quantity of land occupied by the apparatus in each parish; but the Court of Queen’s Bench replied that if this principle be correct, every square foot of land occupied by the apparatus is to be rated at the same rate, without regard to the situation or nature of the land, whether it was originally part of a barren heath, like Putney heath, or part of the market ground of Fulham; and without regard to whether it be merely land occupied by pipes under the surface of the highway, or whether it be land upon which expensive buildings have been erected for the purpose of converting it into- filtering beds or reservoirs. We have no difficulty in saying that this principle is not correct, and that we can not sanction it.”</p> <p>It will be argued, however, that while it may be right to confine the assessment of each county to that portion of the railroad which lies within its own limits, yet regard may be had to the fact that it' is a component part of an entire line, and as such, has a value far exceeding what it would have were it detached from the balance of the line and operated as a separate railroad.' That a railroad from Nashville to Louisville is more valuable than one from Nashville to the Kentucky line may be true, but the State of Tennessee has no right to tax a railroad lying beyond her limits, and as the only part of the railroad within her jurisdiction lies between Nashville and the state line, that is the only part of it that this State can legally tax. So a railroad from the state line to Nashville is more valuable than one whose terminii are on the north and south boundaries of Sumner county; but Sumner county can only tax such a railroad as she finds within her jurisdiction, and can not add to that value by looking beyond her limits. The question is, what is that part of the railroad worth that lies within her own limits? And to arrive at this, she has no right to estimate the value of the whole road and then assume to take a certain proportion of it; for if, by taking such a proportion of the value of the whole road, she gets a larger sum than she would by taking the value of only so much of the road as lies within her own limits, she is ceiv tain to get a tax upon values that do not exist within her own jurisdiction, and which therefore she has no right to tax. If Sumner county may thus get the benefit of values beyond her jurisdiction, so may every other county upon the line, and we may thus be compelled to pay upon the same values twenty different times.</p> <p>It is said, however, that the road-bed and superstructure should be taxed as a railroad, and not as farming land; that our road-bed is worthless for farming purposes, that our iron and cross-ties would be worth only what they would bring as so much old material, and in that way we - would escape from all but- a nominal taxation. We do not insist that our land should be' taxed lower than the adjacent lands, merely because we have rendered them useless for farming purposes by the way we have constructed our road. On the contrary, we stand ready to pay as high a tax upon every acre of ground we own in Sumner county as any adjacent taxpayer of that county is taxed upon his. We also stand ready to pay the full value of all iron ' and cross-ties put upon the road; and when we have done this we have done as much as any other tax-payer, and should not be required to do more. The assessment law requires that “in assessing real estate the following shall be shown:</p> <p>“1. The description of the property.</p> <p>“2. The name of the owner or owners.</p> <p>“3. The value of the land or town lots, including improvements.</p> <p>“ 4. The value of mills, manufactories, distilleries, breweries, founderies and other buildings used for similar purposes”; Acts 1873, p. 169, s. 5.</p> <p>We ask that our assessment be made upon this principle and no other. We do not insist that our land shall be taxed as a farm, for it is not a farm. It has a character as distinctive as that of a mill, manufactory, distillery, brewery, or foundery, and should be taxed precisely as it is. But in taxing the mill of a private citizen situated in Sumner county, while it could not be taxed as a mere building, the assessor could not look to the fact that the same citizen owned a distillery a few yards distant, but in Davidson county, where he used the products of his mill more profitably. Neither could Davidson county, in taxing the distillery, have regard to the mill in Sumner. The fact that they were both owned by the same person and used in connection with each other might render both of them much more' profitable, but it would not make them more valuable in the sense of our assessment laws, which do not affect to tax profits or incomes. Some other citizen of Sumner might own a mill by the side of the other mill, and in all respects its duplicate; would he be entitled to a reduction in his taxes because he had no distillery, like his neighbor’s, to furnish a market for his mill, which, in consequence, lay idle most of the year? So; while our railroad in Sumner county is to be taxed as a railroad, and is not to be regarded as a mere slip of land encumbered with old iron and cross-ties, yet it is to be regarded simply as a railroad, and its franchise right to charge for freight and passengers, the profits that it may earn from that source, and the fact that we own other portions of a road, which, operated in connection' with it, enables us to make this part of the road more profitable than it otherwise would be, can not be regarded.</p> <p>In the case of the State Easton Del. Dr. Co. v. Metz, 31 N. J. Law, 378, the prosecutors were the owners of a toll-bridge over the Delaware river, between Easton in the State of Pennsylvania, and Phillipsburg in the State of New Jersey. The one-half of the bridge, including the abutments and piers, to the middle of the river on the New Jersey side, was assessed for taxation as real estate in New Jersey, under a statute which required the “assessor to assess' and value property at its full and fair value, and at such prices as, in his judgment, said property would sell for at a fair and bona fide sale by private contract at the time 'such assessment was made.” The witnesses on the part of the tax assessor estimated its value from $120,000 to $200,000, looking not only to the value of the bridge as a structure, but upon the fact that it was a toll-bridge, owned by a company with the right of taking tolls; that the travel was large and income very profitable. The witnesses on the part of the bridge company estimated its value at from $25,000 to $60,000, looking only to the material value of the bridge as a structure, without reference to the franchises of the company or the income of the bridge or the amount of travel. The assessor estimated the whole at $120,000, and assessed the New Jersey half of it at $60,000. Upon certiorari, the Supreme Court of New Jersey reduced the assessment to $25,000. They held that the assessor did right in refusing to assess it as if it was worth only the value of the lumber that was contained in it; that it was in fact a bridge, with a character as distinctive as that of a house, a store, or a mill, and should be valued at what it was, as distinguished from the value of the material to be converted into something else. But while the assessor had the right to take these matters into consideration, as well as the fitness of the structure to the purposes for which it was intended, the court held that he had no right whatever to look to the value of the franchise, nor to the income derived from the tolls. Upon this point they say: “There is a great distinction between the franchises of a company under its charter, and the material things contemplated by it and necessary to its objects. There is a value about each. In this case the rights of the bridge company, under their act of incorporation, to build a bridge and to take tolls, are matters of value apart from the structure. They are not liable to be taxed under our present tax laws, except only so far as they may be reached in the capital stock, and the surplus, if to tax such is legal. If the bridge should be destroyed, these rights would still exist, and, as such, could not be taxed; and if rebuilt, its value should not be enhanced by the peculiar franchises or profits of the company. The franchises do not connect themselves •to the bridge as determining its value; the bridge is •only the material means to their enjoyment, and has an ascertainable value in itself”: p. 383. A building fitted up expressly for a bank, with its vaults and arrangements, would be valued independently of the profits that could be made there under its charter. The adaptedness of the building for a bank would be taken into the estimate of value, but not the franchises or profits of the corporation using it; and so, in this case, the adaptedness of a bridge as a structure for the purposes intended should be considered in fixing its value, but not the franchises or profits of the corporation using it: p. 383. Proceeding upon these principles, the court reduced the assessment, as stated above.</p> <p>Section 13 of the assessment act taxes the franchises of certain saving banks, but they are the only corporations whose franchises are taxed by the laws of Tennessee: see Acts 1873, p. 172, s. 13.</p> <p>The first question in this case is the question of jurisdiction. Of this, I desire to say, that I am well satisfied that the question comes up as it does — that is to-say, in such form, that it can be determined without in any manner defeating a decision on the merits of the case, since a judgment on the question as to the county, will afford a rule by which the state in any event will govern herself, and so obtain the benefit of a determination equally conclusive, practically, whether the-Court shall entertain the jurisdiction as to her or not..</p> <p>The question of jurisdiction is one of vital importance to the State, and if to that, I direct the chief of my argument, the weighty consequences hanging on its determination, will amply justify me.</p> <p>This branch of the case, in my mind, upon consideration, divides itself into two parts, and gives rise to two questions. The acts on the subject, 1868, c. 79, s. 16, and 1873, c. 44, s. 2, expressly forbid the use of a supersedeas to stay the collection of any tax. The latter also prohibits any proceeding but the one provided for in its body, for the remedy of any wrong in connection with the taxes. This last, probably, does preclude the remedy by certiorari. The remedy by certiorari is constitutional, the remedy by supersedeas is not. The one, therefore, stands upon a different footing from the other. As to the one, the supersedeas, it is merely a question whether the state is bound to prescribe the same remedy between the millions composing her community on the one side, and the individual on the other, as she provides for one individual against another, and whether she has done so. As to the other, the certiorari, it is a question of the extent of the constitutional provision, and the intent of it.</p> <p>The association of the certiorari with the supersedeas, in our minds, is calculated to mislead. But when examined, they are found to be merely associated writs. The certiorari is used in many instances without the associated writ, and on the contrary, the supersedeas is in constant use, disconnected with the certiorari. Every day we have certioraris issued from this Court to bring up perfect records. We may use it if a court below refuses to send up the record at all, to enforce the right of appeal. It may be allowed on the pauper oath when the supersedeas can not be obtained for want of security. On the contrary, the supersedeas accompanies a writ of error — where it is ordered by a Judge of the Supreme Court, and its relation to the writ of error is precisely the same as to certiorari; sometimes accompanying it, and often not doing so. There is then no necessary connection between them. The prohibition in the act of a supersedeas is not therefore in any sense an interference with the constitutional writ of eertiora/ri, but is perfectly consistent with it.</p> <p>This branch of the statute, then, involves simply the right to use exceptional remedies in the collection of revenue, and the question whether the remedy here is exceptional.</p> <p>The preventive remedies of the courts are extraordinary, and not the usual remedies. Every lawyer will remember the history of that memorable contest by which the writ of injunction was set on foot, by which a court having no revisory power, and so no writ which would affect the process of the other, by the use of a power over the person of a suitor, prohibited him from using the process they could not stay or supercede. It was an extraordinary process, out of the course of the common law, and as such regarded and resisted by one of the greatest of English judges. It was, however, established and has become common, but still, remedy by way of prevention in every shape is regarded as extraordinay, as distinguished from the common course of law to redress evils after they have been consummated. No writ of this kind issues of course, but every one — injunction, attachment, supersedeas, mandamus, etc., is granted only upon the oath of a party. Now, the State does, by this act of 1873, take away the preventive remedies, and leaves the citizen, in a contest with her, to the ordinary remedial actions which prevail between citizen and citizen.</p> <p>"We contend that there is no constitutional provision which prohibits such a course, and no direct prohibition is put forward. It is needless to repeat the authorities, which have been presented by Mr. McHenry, which settle that due process of law does not require, in respect of the State, the same process that is required between citizens. The distress warrant is due process of law in collecting revenue. Indeed, distress itself, without warrant, was due process of law in England, in cases of trespass, etc. This summary process has been constantly used in Tennessee, and it is used in the United States courts by statute, under provisions of a constitution exactly equivalent to ours, prohibiting the deprivation “of life, liberty or property, without due process of law.” As to the exceptional mode, taking away the supersedeas, there can be no question.</p> <p>But the matter of the certiorari stands upon a different footing, and as there is a clause in the Constitution prohibiting its disuse, we must consider the scope and intent of the- prohibition. To do this it is necessary that we study its terms.</p> <p>The Constitution of 1796, art. 5, s. 7, is in these words: “ The Judges or Justices of the inferior courts of law, shall have power in civil cases to issue writs of certiorari to remove any cause, or a transcript thereof, from any inferior jurisdiction, into their court, on sufficient cause, supported by oath or affirmation.” The subsequent Constitutions have the same words in every essential particular.</p> <p>It is said the certiorari has been held to apply to several cases not within its scope in England; but is not held that the Constitution requires such extension. In the case of courts martial, our courts held, that a certiorari would lie — but not that it was included in the constitutional provision. Nor was any point involving the Constitution involved in Duggan v. McKinney, 7 Yer., 21, except that it was held that the Constitution pi’otected the remedy, and did not restrict the power of the Legislature to regulate it.</p> <p>The case in 11 Hum., 251, does not mention the Constitution. It states that at the earliest period of our judicial history., the writ was extended in its operation, and cites 2 Tenn. It., 181; 4 Hay., 54, 69.</p> <p>The cases in 4 Hay., are proceedings in a court martial, to which the Constitution could not apply, and which showed- no extension of the English practice. The other, Stuart v. Mall, 2 Tenn., 181, is a case where the attempt was to get the benefit of a writ of error and bill of exceptions, by means of a certiorari, to re-try a case from the County Court, and where the relief was denied. The court speak only of proceedings in courts not of record. Not a single one of the cases cited, nor any to be found in our decisions, go beyond this revision of acts of courts, justices, or courts martial, until the case of Pearl v. Nashville, 11 Hum., 249. There it was applied to the warrant of a city recorder to collect a tax, and that proceeding was quashed for defects apparent on its face.</p> <p>Now, none of these c'ases show that the Constitution extends to courts martial, whose jurisdiction is criminal, nor to tax cases. Could, then, the Legislature forbid the issue of the writ in a case of court martial ? Certainly, for the Constitution applies to civil, not criminal matters. The same observation is true of Spears v. Loague, 6 Col., 421, where there is no allusion to the Constitution, and nothing to show that it was cited or relied on. Smith v. Hen & Reagan, MS., Knoxville, 1874, is put upon the Code, 3123, and not on the Constitution.</p> <p>So there is nothing in the decisions of.our courts to show that they have regarded a distress warrant as being subject to certiorari, within the Constitution. There may be persuasive authority that before the act of 1873, the certiorari was a proper remedy, but not that it was a constitutional remedy, beyond the power of the Legislature to repeal. The question is just this, and on this there is no authority.</p> <p>Now, to what does the Constitution apply? To civil cases — to remove causes, or transcripts thereof, from inferior jurisdictions.</p> <p>I maintain, that a revenue matter is not civil, that an assessment is not a case or a cause, and that a tax assessor is not a jurisdiction.</p> <p>I have already shown, (chiefly by the aid of my learned associate,) that revenue proceedings are exceptional in their character, and not subject to the rules as to civil proceedings, and we are not' therefore, bound liberally to construe e civil ’ to include matters which may or may not come within its scope. When you undertake to show that the people have tied their own hands in a constitution so that they may not protect themselves as a state,, from the most serious embarrassment, and that the Legislature as their representatives, have exceeded an authority, which you must limit by strict proof, you fail if the expression is equivocal. Besides, if you find in that constitution, a provision allowing the Legislature to decide whether the State is to be suable or not, you will not construe a doubtful declaration, that she may be sued by certiorari, to operate against the State if the words expend their proper force in any sense upon these litigations, in which the State is no party. Revenue cases are not properly 'civil/ To sue in a revenue case is to sue the State, and as the option is given to the Legislature to decide whether the State can be sued in any case, it will not do to say that ' civil’ is to include State cases.</p> <p>Mr. Bouvier defines a civil action to be "an action which has for its objects, the recovery of private civil rights or compensation for their infraction.”</p> <p>Now, supposing a suit brought by the State for revenue, can it be said to be an action to recover a private civil right, or compensation for the infraction? If not — if it is a public right to collect the tax, i. e., a right belonging to the public and not to a private individual, then it — if a case, is not a civil case.</p> <p>Blackstone, in treating of actions, says: " In treating of these, I shall at present, confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject, which the King, as the fountain of justice, is officially bound to redress, in the ordinary forms of law,1 reserving such injuries or encroachments as may occur between the crown, and the subject, to be distinctly considered hereafter, as the remedy in such cases is generally of a peculiar and eccentrical nature ”: 3 Black., 114.</p> <p>He then proceeds, p. 115, to define suits and actions, and to divide them into actions, real, personal, and mixed, and says under these may every species of remedy by suit or action in the courts of common law be composed. Showing that in his classification, revenue matters are not included in this class.</p> <p>He then, after going through the various civil actions, treats of the petition of right; the monstrans de droit; as the only remedy against the crown, and proceeds to show the remedies which the King has.</p> <p>It is true, he speaks of remedies against officers of the King, but they are remedies after the fact by action of trespass, etc., or if by way of prevention, are upon the idea of personal wrong, not justified by law; in which the officer is acting outside of his official duty. No instance, I think, can be produced in which the courts have stayed the proceedings of tax assessors, or others acting in the scope of their duties, by certiorari or other preventive writ, on the ground of mistake of judgment. See my brief on the Bank of Tennessee case, classifying the cases in which officers may be sued.</p> <p>Nor is it a case. Bouvier defines a case to be a question contested before a court of justice. An action or suit at law or in equity.</p> <p>Of course, it has various other meanings; as a case of conscience; a ease of compound comminuted fracture; ■ or a case of swindling. But it can hardly be supposed that such cases can be subjects of certiorari. Taken in connection with ‘ courts5 and ‘ civil,’ it means an action in a court.</p> <p>Now, I maintain, that when the tax assessor sends me one of the assessment blanks, and I hand it back to him, and he puts it down on his tax-book, we do not institute a case. Nor do we make a case within the meaning of the Constitution, when I fail to make my return, and he puts me down as I was last year, or adds to that oné-fourth of the amount,' because I fail to make the proper return. If these are civil cases within the Constitution, in which every man has the right to certiorari, then is our Constitution a curse, and our revenue system a mockery, under which, the little fish will be consumed by those who are able to fight off the taxes. This thing of assessing taxes is not judicial, it is not upon evidence, but eyesight of the assessor; he takes no testimony, he issues no process, he opens no court, he institutes no suit! Who are the parties, where is his transcript or record? The review by the Sheriff, County Judge, or other officer has some of the insignia, of a suit, but it must be in its nature like the original act of assessment.</p> <p>It is not a cause to be brought up. A cause is defined to be “An action or suit at law or in equity, a case in court.</p> <p>Then, the Constitution fails in three particulars to cover and protect an assessment of taxes. It is not a case, cause, or civil.</p> <p>Again, a tax assessor is not a jurisdiction. That is a word as strictly applicable to courts, as case and crime: Mr. Tidd, Pr., p. 398, uses ‘ inferior jurisdictions’ as equivalent to ‘inferior courts.’ Who calls the Governor’s office a superior jurisdiction, or a Sheriff’s an inferior jurisdiction, or a tax assessor a jurisdiction? The concurring indications show that the Constitution had in view something other than these things, and meant to apply this process, beyond legislative recall, to Justices of the Peace, and other like jurisdictions, acting between private parties — and they meant then to trust the Legislature and Courts with the extension to criminal cases, and such others as they may deem proper. The courts may have extended it to this class of cases, but not with any-intimation that it was in this application, placed upon the impregnable basis of a constitutional writ. The Legislature too, have treated it upon the same footing, thinking it was necessary, in 1857-8, to insert it in the Code.</p> <p>I have shown that the decided cases do not establish any thing on the constitutional question, and are consistent with my view. But there is a case inconsistent with any other, the case of Wade v. Murray, 2 Sneed, 50. There was a case — a civil case,- before a jurisdiction — not a Chancery Court, but a Chancellor with statutory power, sitting at Chambers, on notice with parties, evidence, and all the paraphernalia of counsel,, argument, etc. Yet the Court held that it was not a case for certiorari, because it was evident that the Legislature meant that there should be no appeal or writ of error. All the cases on certiorari were cited in the briefs, and the Constitution, art. 6, s. 15; which must be a misprint for s. 10; as s. 15 relates wholly to civil districts, and constables, etc. The Court recites its provisions, and holds, notwithstanding the Constitution, that it can not apply where the Legislature means the proceeding to be final: 2 Sneed, 56, and they hold that the certiorari can not be maintained. They might have said that the Legislature have not clearly manifested the intention to take away this right, and a fair construction of the act, will be to hold that it allows this writ. They do not even give that effect to the Constitution. They hold that the Legislature has the power to make any proceeding final, when they see proper so to do, and this provision of the Constitution does not prevent it.</p> <p>How much more here where is no case, no civil action or cause, no jurisdiction or court, and a matter in which the Legislature has declared, in words carefully weighed and framed, that the proceedings shall not be disturbed or inquired into until the tax is paid.</p> <p>This case seems to establish a theory which has been floating in my mind for some time, viz.: that the Constitution only intended to settle the writ of certiorari as a mode of reaching a result when the review was to be made, but did not intend to compel the Legislature to make every proceeding of an inferior judicature subject to review. This would give it the operation contended for by the one class of North Carolina lawyers, and settle the whole controversy, whether it was the proper writ, without settling for all time that no civil judgment could be final in the first instance.1 Either this is the effect of the decision, or it must be put upon the ground that only-controversies of a regular court or . judicature can be subject to its constitutional irrepealable action. The fact that the case of Wade v. Murray was the subject of a dissent, to my mind, gives assurance that it was thoroughly considered. Nothing is more sure to bring out the powers of the judicial mind than a disagreement and collision of judges, taking different sides of a question and debating it orally, in consultation.</p> <p>It is to be remembered, too, by those who would give weight to the case in 11 Hum., that this opinion is by the same judge who delivered that opinion, and it shows affirmatively what that opinion' shows negatively, that he was not in that case (Pearl v. Nashville) considering the constitutional aspect of the matter, but the practice and usage only — beyond the Constitution.</p> <p>Certiorari is not properly a mode of reviewing questions of fact, but of law merely: 1 Tidd, 398, note A. Such was the English rule. But in Beck v. Knabb, 1 Tenn., 60, the right of certiorari after trial (the writ in England being used almost 'wholly before trial) is derived from the right of retrial on appeal; and it is clearly shown that where there is no appeal, there can be no retrial on certiorari. And this ease strongly corroborates the case of Wade v. Mwrray, 2 Sneed. In the case of Quaife v. State, 3 Zab., 90, the same point is recognized, that at common law the certiorari only reached errors of law; and although the court in that case revise the errors of law, they refuse to have anything to do with the estimate of value.</p> <p>Again, it is clear, from our decisions, that the certiorari was either a substitute for a writ of error, or for an audita querela, to affect a judgment; or a proceeding to affect an execution» To the latter no analogy can be claimed for this proceeding. No indication occurs anywhere on our books that the dispute in North Carolina involved the application of this writ beyond these two classes of cases. In these we have the measure of the right of review by the superior courts, and these were confined to courts and judicatures, and did not extend to acts of mere ministerial officers not constituting courts.</p> <p>The cases on the subject of certiorari cited by Mr. Baxter, throw no light on the constitutional argument.</p> <p>The case of Quaife v. State, 3 Zab., (N. J.) 89, and the preceding case of Kingsland, show that the matter enquired of was the levy of a tax by a town meeting above the amount limited by law, and beyond the authority of the body, and the certiorari went to the clerk of the township in one case, and to the tax collector in the other. The act to be reviewed was therefore quasi legislative in its character, and, clearly not within the proper scope of the certiorari as used in this State. But the case in 1 Vroom, 353, shows that the application of the certiorari in New Jersey is regarded by their own court as anomalous and peculiar to their practice, and they justify it upon legislative recognition. They do not claim for it any legitimate derivation from anything in the common law.</p> <p>It further appears that in that State the statute gives a right of appeal to the courts, and they might well maintain the jurisdiction upon the same principle which we have deduced from the common law, in Bech v. Knahb, that a right to appeal, whenever defeated by accident, &c., supports the right to certiorari.</p> <p>The case of State of Missouri v. St. Louis Court, 47 Missouri, 599, is a certiorari to the county court, which is an appellate court in questions of assessment by statute, a regular court acting upon complaint of the party, and the proceeding in which has all the elements of a suit; so that it throws no light whatever on the question, whether the original assessment is a case to which the certiorari may reach under our Constitution.</p> <p>The case of the Cal. Nor. R. R. v. Board of Supervisors of Butte Co., 18 Cal., 671., is a proceeding under a statute of California, expressly giving a remedy, and time to prosecute the remedy, but without prescribing what the remedy is to be, and the court hold the appropriate remedy is by certiorari, and this results from the statute and common law principles, as the remedy by writ of error would, if it was to operate on a court of record. It is to a board of supervisors, who seem to be a court having some of the qualities of our county court, probably, however,, with only revenue powers,, and not acting in a mode to which writs of error will apply.</p> <p>In 37 New York Rep., 516, the case is a suit against a tax collector, in which, without any statute on the subject, the attempt is made to recover taxes- and go into the assessment, and the point decided is, that no such suit will lay; and so the action failed. The court do then extrajudicially discuss the certiorari,. beginning in this way: “ But in this case we are not prepared to say that the plaintiff has not, or rather had not, if he had availed himself of it in time, an ample remedy by certiorari to correct the assessment while it was in fieri and capable of being reached.” The opinion then proceeds with some rather loose obiter dicta about the scope of the certiorari, and concludes with, “ If this remedy should fail, and the town authorities fail to redress the grievance, the only remedy will be to apply to the Legislature to provide one.” Certainly this is too loose to answer as an authority.</p> <p>But in New York the fact is, the certiorari is a statutory remedy in numerous cases, and by express statute goes to officers as well as courts, as it does here under the Code.</p> <p>The other citation from 40 N. Y. is an error; no such case is found in that book.</p> <p>It is said the act of 1873, amending the Code, is void under the Constitution, art. 2, s. 17. The evil to be remedied by that provision was this: the Legislature had been in the habit of passing acts which gave no notice on their face of their purpose or substance — as, Be it enacted, that sec. 4700 of the Code be repealed; or amended by inserting the words, &c. Now the Legislature, by such act, was liable to be imposed on by the change of a single figure or word, or by impudent misrepresentations on the Soor. It was, therefore, required that the act should give notice on its face of its subject. This act does so fully, and is in compliance with the Constitution. To give the constitutional provision the construction claimed, would render it impossible to legislate, as every law modifies or affects many other laws; and if every act to be affected, directly or remotely, must be recited ■or directly referred to, legislation would be impossible.</p> <p>As to the construction of the act of 1873, s. 8, ■the conclusions of Mr. McHenry are clearly right. There are technical rules which bind us to this construction. But if we look beneath the crust of technicality, we find them founded in the deepest knowledge of mental operations.</p> <p>The rule is universal that the enumeration of particulars, followed by a general elanse, gives to the general clause a restricted operation, to matters ejusdem generis. A mind directed to particulars is naturally disposed to extend their enumeration by some general clause, lest something should be omitted; but just as naturally the thoughts are confined to something of the like kind. Such general clause is not indicative of an intent to include everything that the most extended construction of them may include.</p> <p>The present case brings before us the principle. The law enumerates certain corporations of a particular kind, and we may extend the general clause to any corporation of like kind. Now, what is like</p> <p>kind? Likeness may be in various degrees. It may liken banks to banks, or other money corporations; or banks to other local corporations, as gas companies. Now, the court have held that a gas company is included. That establishes the extension of the like thus far to the broader construction. But the-question now is, is this likeness to be extended to corporations in no like sense local, as a railroad, which may reach throughout the State and beyond it? Does not the use of the provision referring to locality, &c., show conclusively that the Legislature did not contemplate such a corporation as a railroad ? But it may apply to all like in kind as to local character, not to those unlike in that respect. It may be said this applies to the main question, whether the Legislature intended to tax railroads, and that the details prescribed do not fit. them. But they are bound by their duty to tax all property, and a well settled and the controlling rule is, that they shall not be construed to act contrary to the Constitution.</p> <p>In regard to valuation, the mode of estimating in oidor countries throws light upon the proper mode of arriving at value. Thus (as suggested by a very experienced and able lawyer) estates in England are estimated at certain number of years-purchase, that is, at a certain multiple of the yearly profits; showing that yearly profits is a well-settled means of estimating value; whereas, one of the great' points for petitioners here is, that value is to be decided upon without looking to this element at all.</p> <p>As to the question of constructive realty, it . is a familiar common law idea. The keys of a house; the title-deeds of an estate; and the muniment chest to contain them; the horn pertaining to an estate held in cornage, are instances. Villains regardant were annexed to the manor and passed with it. More modern instances of fixtures very like rolling stock are, the bands on machinery, which are in every respect on the same footing. A little reflection will furnish many more.</p>

A cause of action cannot be assigned so as to enable the assignee to sue in his own name, except in oases expressly provided for by statute; and the assignor, or, in'case of death, his- administrator, is as necessary a party in equity as at law. • [Changed by 1825, 29, 3 (Code 2858), where death occurs after suit brought.] The fact that the assignor died pending a suit at law in his name for the use of the assignee, and that no one will administer on his estate on account of…

when an obligation exists, prima fade valid upon its face, hut which by extrinsic facts is proven to be void, and of which a vexatious use may be made, to the prejudice of the apparent obligor, he may apply to a court of equity to have such obligation delivered up or cancelled, notwithstanding a court of law has jurisdiction,to declare it void, upon a suit instituted thereon. [Acc. McMinn «.

A deed not duly registered is void as to the creditors of the grantor, whether they had notice or not of the existence of the deed.1 [Aco. 6 Y. 208; 8 Y. 101; 9 Y. 73; 1 Cold. 412; all citing this case.

That a note may be sold at a discount is certainly true; but whenever the indorser or seller becomes bound for the whole amount, by, in effect, giving- a new note, this can be usurious.

A deed is founded upon a grant, within the meaning of 43, 4, when it is made for the conveyance of granted land, by whomsoever made, and upon whatsoever consideration. [See Campbell v. Crockett, 8 Y. 228, where this case is cited.] And, therefore, a deed purporting to convey the land in suit to the tenant in possession, though void, and forming no connection, either legal or equitable, with the grant, accompanied with seven years’ peaceable and uninterrupted possession, is a…

The possession of personal property for the length of time required to bar the action of the owner for its recovery, vests the right of property in the possessor. [Acc. 4 Y. 175, 508; 6 Y. 12; 7 Y. 234; 8 Y. 392,430; 10 Y. 118, 475; 1 Hum. 47; 9 Hum. 702; 2 Sn. 31; all citing this case.]

<p>Tax on Vehicle. Paid hy person using.</p> <p>Where a wagon is hired hy owner, to another who uses it as a dray within a city where drays used for purposes of carriage are subject to a privilege tax, the owner is not liable to the tax.</p>

<p>Appeal by complainant from the decree of the Chancery Court at Chattanooga, dismissing bill on demurrer, April Term, 1875. D. M. Key, Ch.</p>

Chas. G. Smith, Ch. The single question presented in this case is, whether the Clerks and Masters are required to give in for taxes, funds in their hands accruing in suits pending in the Chancery Courts. Ve do not controvert that it is their duty to give in for taxes, some funds; but by a proper construction of the act they are not required to list all funds they may hold by virtue of their office. The distinction, we think, is this.

<p>Appeal from an order of the Circuit Court, April Term, 1875, on a motion to charge the defendants with a county tax of five dollars, imposed by the County Court of Washington, on each indictment and presentment. E. E. Gillenwaters, the Judge of the Circuit Court, had entered an order prohibiting the clerk from taxing the county tax in the bill of costs. The motion was to set aside this order and direct the clerk to charge the tax. J. H. Robinson, Special Judge, elected by the bar in the absence of the regular judge, refused the motion, from which the County of Washington appealed.</p> <p>Under section 28, article 2 of the Constitution, the Legislature has the right to levy a tax on presentments and indictments, and also to direct how each county may raise a revenue for itself.</p> <p>For the prevention and punishment of crime, the Legislature has power to impose a specific tax in the nature of a fine, against any one convicted of an of-fence on a presentment, or indictment; and to impose this in addition to any fine the Court in its discretion may impose.</p> <p>This the State or Legislature has done in the Code, 551. The Code, 553, sub-sec. 23, fixes the amount of this tax at three dollars and a half.</p> <p>The act of 1871, c. 101, s. 2, fixes this tax at five dollars.</p> <p>The sources of county revenue are the same as of state revenue: Code, 482, 483.</p> <p>“The rate of taxation for county purposes, shall not exceed the rate of state taxation for the time being ” : See Code, 488.</p> <p>In this case the County Court under sec. 489 of the Code fixed the tax on presentments and indictments at five dollars.</p>

<p>TaxonSax.es. Buyer of realty pays.</p> <p>The vendee of lands is required by law to pay thy tax imposed on sales: Code, 543; 553¶ 3.</p>

<p>1. Chancery Sale. Arrears of tax paid out of purchase mmeg.</p> <p>A purchaser of land at Chancery Sale is entitled to have a lien of the State for taxes in arrears relieved by payment out of the j>rice bid at the sale.</p> <p>2. Same. Same.</p> <p>A purchaser of land at Chancery Sale is not entitled to be relieved from the purchase, because the land has been previously sold at tax sale, and bought in by the State or city, if the State or city is not proceeding upon the sale, but treating it merely as a means of securing the taxes.</p>

<p>1. Taxes. On really. Gontraet to pay. Effect of.</p> <p>A purchaser of lands in February agreeing to pay the taxes for the year, the seller was properly assessed for the town corporation taxes, he being the owner on the 10th of January.1</p> <p>2. Same. Same.</p> <p>The agreement of the buyer could not affect the right of the corporation, nor entitle the seller to an injunction.</p>

<p>1. Laud Tax. Life estate and remainder.</p> <p>The owner of a freehold interest for life or during widowhood, in real estate, is bound for the taxes on the estate.</p> <p>Case cited: Whiter. Mayor and Aldermen, 2 Swan, 364.</p> <p>2. Same. Same.</p> <p>A widow; to whom is devised the use and occupancy of a dwelling house, during her life or widowhood, with the expression of a desire if agreeable to her, that her daughter might occupy a room and her son another; is the owner of the freehold and must keep down the taxes.</p> <p>Cases cited: Benton v. Pope, 5 Hum., 392; BeardmY. Taylor, 2 Col., 137.</p>

<p>Appeal by defendant from the decree of the Second Chancery Court, on an agreed ease, enjoining city taxes, March Term, 1872. Will. L. Scott, Ch.</p> <p>By the 4th section of act to charter and incorporate the Turley Institute it is enacted, “That all real estate or other properties of whatsoever description, which may be used in the conduct of said school, or in anywise appertaining to the same, or in anywise used for the institution, or for the accommodation and entertainment of the scholars of the said Turley Institute, shall be discharged and acquitted of all taxes, whether state, county or city; and no taxes shall be-assessed thereon, or collected therefrom so long as the said properties — real or personal, shall be used and employed in and about the business of said school.” The school was organized under the charter; leased the Turley property and went into operation; and the city disregarding the act of the Legislature, assessed, and attempts to collect the taxes on the property occupied by the school.</p> <p>A mere municipal corporation, the most vulnerable of all corporations, a creature over which its creator always retains absolute power, an artificial thing that never acquires a vested right, even to an existence, attempts by this proceeding to do that which the sovereign power of the State says shall not be done.</p> <p>To relieve educational institutions from the burthens of taxation, has been one of the most cherished features of our organic law: See Cons., art. 2, s. 28; also, art. 11, s. 12.</p> <p>To these provisions of the Constitution, the Legislature has always yielded a ready and cheerful obedience : See Code, 542, sub-sec. 3, Acts of 1859-60, c. 25.</p> <p>The Legislature without a provision to that effect in the Constitution may exempt property from taxation : Blackv ,11 on Tax Titles, 477-8. That a municipal corporation can not tax that which the Legislature has exempted: See Blackwell, 527. And con-elusively, Nashville v. JBanh of Tennessee, 1 Swan, 269, and MoCallie v. Chattanooga, 3 Head, 317.</p>

Appeal by complainants from decree of the ■ Chancery .Court at Chattanooga, October' Term, 1873. D. M. Key, Ch. 1. A bill in equity will lie, an injunction will be granted to a tax payer of a corporation to restrain the illegal appropriation of the city, or for the wrongful use of corporate property: 2 Dillon on Mun. Corp., 731-3; High on Inj., 792. 2. The same relief would certainly be granted to a ■creditor of the city.

<p>New County. Tax to pay debt of old comty.</p> <p>Where a new county is organized,, and by the act authorizing the formation of it, the fractions composing it are declared liable for their pro , ratas of the debts of the old counties from which they are taken, the old county levies the tax upon the fraction, and collects as if no separation had taken place, and a bill'in equity will not lie to compel the new county to levy taxes to pay such pro rata.</p>

<p>1. Taxing Power. Delegation.</p> <p>The taxing power can only be delegated by the Legislature to counties and incorporated towns.</p> <p>2. Same. Same.</p> <p>The power can not be delegated to a separate corporation, to consist of the Mayor and Aldermen of a city, who were to be a board, etc., ex offido.</p>

<p>Counterfeit Note. Payment in.</p> <p>A tax collector may recover from a constable Ms deputy, an amount collected by the deputy in a counterfeit note and paid over to the collector.</p>

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. 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.

<p>Error to the Circuit Court to reverse a judgment in favor of the State. May Term, 1874. T. P. Bateman, J.</p>