Memphis v. Brown (97 U.S. 300)

ERROR to the Circuit Court of the United States for the Western District of Tennessee.

This case also involves the same general facts as those in United States v. Memphis, supra, p. 284.

On March 2, 1876, Brown filed an affidavit in the court below, that he was advised that the capital of merchants was legally taxable for the payment of his decree, and that the same tax should be levied and collected thereon for its payment as on other taxable property, and that the city of Memphis should be compelled by an alias writ to include that capital for such payment, and collect the tax thereon, and pay the same over to him, as commanded by the original writ, and that said levy be made upon the assessment as made and returned for the year 1875. The affidavit also set forth that theretofore only about sixty per cent of the taxes levied in the city had been collected; that after the withdrawal of the property in the ninth and tenth wards as exempt from taxation, and the exemption for the like reason of the property on which the special assessments had been paid, the entire residue (not including merchants' capital) was about $14,000,000, and that the money to be realized therefrom would scarcely exceed $45,000, instead of $125,000.

He therefore moved for an alias writ commanding such levy.

The court on the same day sustained the motion, and ordered that a peremptory writ of mandamus should issue, returnable to the next term of the court, commanding and requiring the city of Memphis to proceed forthwith to include within the property to be taxed for the payment of the said decree, in accordance with the peremptory writ of mandamus theretofore issued therein, the taxable capital of merchants for the year 1875, as theretofore returned and assessed by the city for taxation for other purposes, and to lay the same rate of taxation thereon for the payment of the decree that had been levied on the other taxable property of the city, and collect the said taxes so to be laid; and to pay the same over to the plaintiff forthwith as collected, according to the command of the said original writ.

On the 23d of that month the city passed an ordinance levying a tax of fifty-four cents on the hundred dollars of merchants' capital, 'for the forty-eighth corporate year, 1875.'

On the twentieth day of May following, the city submitted a motion in writing to set aside the order of March 2, and presented as an exhibit a copy of bill of complaint which sundry merchants of Memphis had filed in said court against the city and said Brown, wherein they, among other matters, allege that the order was improvidently issued, without any notice to them, and without process against the city, except the alternative writ of mandamus; and they prayed for a revocation of the order, and for an injunction against the city, to restrain it from attempting to levy the tax.

The court refused to set aside the order, but re-entered the same as its final judgment in the premises.

The city sued out this writ, and here assigns the following errors:--

The court below erred—

1. In ordering the levy of the tax of fifty-four cents on the one hundred dollars of taxable property, in excess of the $1.60 already levied.

2. In assessing the capital of merchants for the forty-eighth corporate year, conformably to the rule prescribed by the act of March 25, 1873, inasmuch as said act was in conflict with the Constitution of the State.

3. In basing the order to levy the tax on the merchants on the ex parte affidavit of Brown, without making any of the merchants of Memphis parties to the cause, and without process against the city, except the original, alternative writ of mandamus.

4. In adjudging the property of any particular tax-payer, or class of tax-payers, liable to the tax in question.

Mr. W. Y. C. Humes for the plaintiff in error.

Mr. William M. Randolph, contra.

MR. JUSTICE STRONG delivered the opinion of the court.