United States v. Memphis

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

Pursuant to the mandate in City of Memphis v. Brown (20 Wall. 290), the Circuit Court of the United States for the Western District of Tennessee passed a decree, March 16, 1875, in favor of Brown against the city, for $292,133.47, and costs, in payment for work done in laying certain pavements in said city. Execution was issued, and returned to property found. March 22, Brown applied for an alternative writ of mandamus to compel the city to pay the decree, or, in default thereof, to levy and collect, as authorized by the act of the legislature passed March 18, 1873, a tax apportioned to the years 1875, 1876, and 1877, in addition to all other taxes, sufficient in amount, after making due allowance for all delinquencies, insolvencies, and defaults, to realize $125,000 each year, and pay the same over to him as fast as collected, or so much thereof as may be necessary for the purpose of satisfying the decree. The writ issued March 26, and on the same day the city filed an answer setting forth that its treasury was empty, and its power of taxation-which, for general purposes, was limited to one per cent on all taxable property-exhausted; that it was a misdemeanor to apply special taxes for any other object than that for which they had been levied; that said act of March 18 had been repealed; that the sum of $375,000 commanded to be raised by the writ exceeds the amount of the decree by $83,133.47; that pursuant to a former mandate, issued in 1873, the city levied a tax of seven mills per cent for the year 1873, and three mills per cent for the year 1874, in favor of Brown, and that there is an uncollected balance on said levies of $170,000, all of which is on account of his decree or claim now sought to be enforced, and which is being collected and paid over to him as fast as possible; that there has been collected and paid over to him from said levies about $132,742.69, and if respondents are required now to relevy the same burdensome tax on those who have paid, it will be doing a great injury to the prompt tax-payer, and will operate as an inducement to tax-payers to resist the payment of the tax; that by the provisions of the law governing the city, the ninth and tanth wards, generally denominated as the new limits. are exempt from the payment of any tax to pay for certain indebtedness of the city, and that the writ does not show whether the indebtedness is one of the excepted classes or not, and the determination of this question is a judicial one, which respondents cannot safely decide for themselves, and should be determined upon the face of the writ; that when the contract was made for the laying of said pavements, by which the aforesaid debts became due to him, it was understood and stipulated that the owners of abutting property should pay for the pavement in front of each lot; that many persons paid for such pavement according to the terms of the contract, and when the act of March 18, 1873, was passed, it provided that such persons as had paid for the pavement and held receipts therefor might be excused or released from paying the tax levied to pay for such pavement,-wherefore respondents cannot levy and collect from all persons subject to pay taxes the tax as commanded by the writ, and therefore cannot obey the writ.

Brown demurred to the answer, on the ground that said act gave full power to levy the tax, and that the legislature could not repeal it so as to defeat his rights; that the court could not consider past levies which had not been paid; that said act makes no discrimination in favor of any person or class of persons; and that the voluntary payment of the special assessments was no defence to a lawful levy of taxes for the payment of his decree. The demurrer having been sustained, a peremptory writ was issued, March 30, 1875, commanding that the city and its general council 'proceed each for the ensuing three years, to wit, 1875, 1876, 1877, respectively, at the same time and in the same manner that other taxes are assessed and levied and collected, to assess, levy, and collect upon all the property within the city taxable by law, a tax, in addition to all other taxes allowed by law, payable in lawful money of the United States of America, sufficient in amount, after making due allowance for all delinquencies, insolvencies, and defaults, to realize $125,000 each year, for the years 1875 and 1876 respectively, and so much of the said sum for the remaining year, to wit, 1877, as may be required or necessary to pay and satisfy the balance of the said decree, including interest and costs, not satisfied by the taxes collected and paid over during the two preceding years.'

It was further ordered that a writ for each of said years should be issued by the clerk, upon the request of Brown. The writ for 1875 was issued June 28, and served the next day. On December 10, the city passed an ordinance 'that a special tax of fifty-four cents on the one hundred dollars' worth of property be and the same is hereby levied for the forty-eighth corporate year (1875), for the purpose of paying $125,000 of the decree rendered by the United States Circuit Court in favor of T. E. Brown against the city, as required by the writ of mandamus.'

Feb. 9, 1876, the city filed a return to the last-mentioned writ, setting forth the passage of the above ordinance, and alleging that proceedings were being had to collect the tax thereby imposed; that by an act of the legislature passed Dec. 3, 1867, certain new territory was added to the corporate limits of the city, and designated as the ninth and tenth wards thereof; that by an act of the legislature passed Dec. 1, 1869, it was enacted that the people residing within such addition should not be taxed for any part of the debt of the city, or interest thereon, contracted prior to the passage of the act of Dec. 3, 1867; that in March and July, 1867, the city entered into contracts with certain parties, whereby they undertook to pave streets with Nicholson pavement,-which contracts were, with its consent, transferred in June, 1868, to Brown; that although some portion of the work was done after the passage of the act of Dec. 3, 1867, the greater portion was done prior thereto, and none of it in the ninth or tenth wards; that pursuant to an act of the legislature passed Nov. 24, 1866, the contracts provided that the cost of the paving was to be borne by the owners of the lots abutting on the streets to be paved, according to frontage, the cost to be paid by a specific assessment on each lot and the owner thereof, one-half to be paid in cash on the completion of each section of pavement, and the other in thirty, sixty, and ninety days thereafter, in equal instalments; that a large number of said owners paid for the work in that manner, but that others having refused so to pay, and suit having been brought to so compel them, the Supreme Court of Tennessee declared said act of 1866 unconstitutional and void, and that the sums so due must be raised by general taxation; that the act of March 18, 1873, was thereupon passed, empowering the city to levy a tax in addition to all other taxes allowed by law, sufficient to cover the entire cost of said pavements; that on March 20, 1875, the act of 1873 was repealed, and that suits were then pending to restrain the levy of any tax on the property of those persons who had paid to the contractors. This return was, on motion of Brown, stricken out. He then filed an affidavit setting forth his belief that the tax of fifty-four cents on the one hundred dollars' worth of taxable property was insufficient to pay the sum for the year 1875, required by the peremptory writ to be paid on his decree; that the value of the entire taxable real and personal property in the city, including the $2,000,000 in the ninth and tenth wards, was $23,000,000; but that from the operation of said tax the property in said wards and that of persons who had paid the special assessments, as well as the taxable capital of merchants, was excepted. He therefore prayed for an 'alias writ of mandamus commanding the city of Memphis and its mayor and general council to make a further or additional levy of taxes on all the taxable property of the city of Memphis, including the capital of merchants as taxable, and excluding the property in the ninth and tenth wards of the city, and the property aforesaid on which the said special assessments for the Nicholson pavement costs were so paid, as exempt from such taxation, such an amount in addition to the levy already made as will be sufficient to pay to him the entire sum of $125,000, to which he was entitled as aforesaid; and that the said levy may be made upon the taxable property as assessed and returned for the year 1875, and may not be further postponed.'

On March 2, 1876, the court ordered 'that an alias peremptory writ of mandamus do forthwith issue, directed to the city of Memphis, and the mayor and general council, commanding them to proceed, when they next levy taxes, to levy, in addition to the tax already levied for the payment of the plaintiff's decree under the requirements of the original writ herein issued, a further tax on all the taxable property of the city, excluding from such taxable property the property of persons residing in the ninth and tenth wards of the city, and the property on which the assessments for the payment of the costs of the Nicholson pavement have been paid, the same being, as the court adjudges, exempt from taxation for the payment of the said decrees, sufficient in amount, when added to the tax heretofore levied under the original writ, to yield to the plaintiff $125,000; and to collect the said taxes so to be levied as speedily as the same can lawfully be done, and to pay over to the plaintiff forthwith, from time to time as the same may be received, the sums collected, taking his receipt therefor; and that they make due return to the court herein, on the return-day of the writ, of the manner in which they have obeyed the same.'

The United States, on the relation of Brown, thereupon brought the case here, and assigned errors as follows:--

The court erred—

1. In excluding from the alias writ of mandamus the property in the ninth and tenth wards of the city as exempt from taxation.

2. In excluding the property on which the assessments by the front foot for the cost of the pavement had been paid.

3. In declining to order the additional levy to be made on the assessment for 1875.

Mr. William M. Randolph for the plaintiff in error.

Mr. W. Y. C. Humes and Mr. S. P. Walker, contra.

MR. JUSTICE STRONG delivered the opinion of the court.