United States v. Memphis/Opinion of the Court

By the mandamus awarded on the 30th of March, 1875, the city was commanded 'to levy and collect upon all the property within the city taxable by law, a tax, in addition to all other taxes allowed by law,' sufficient in amount to pay the relator's judgment. In obedience to this mandate the general council of the city passed an ordinance levying a tax of fifty-four cents on each one hundred dollars' worth of property, and proceeded to collect it. But the relator, thinking this tax insufficient to raise the sum required by the writ to be raised, applied to the court for an alias writ, commanding an additional levy of taxes upon all the taxable property of the city, including the capital of merchants as taxable (but excluding the property in the ninth and tenth wards, and the property upon which special assessments had been made and paid), sufficient in amount to pay the sum required to be paid by the original writ. In compliance with this application such an alias mandamus was ordered by the court, and he now complains that the court erred in ordering the levy, excluding the property in the ninth and tenth wards. Those wards were no part of the city when the contracts were made, in virtue of which the relator's rights accrued. The territory embraced within them was added to the city by an act of the legislature of Dec. 3, 1867, and by a subsequent act passed Dec. 1, 1869, it was enacted that the people residing within the limits of the addition to the city made by the act of 1867 shall not be taxed to pay any part of the debt of the city contracted prior to the passage of the said act. In view of this legislation the inquiry arises, whether the property within those wards is by law exempt from taxation for payment of the debt due the relator, for the mandamus directed the levy of a tax only upon property taxable by law. To respond intelligently to this inquiry, the nature and origin of the debt must be considered.

In the months of March and July, 1867, the city entered into contracts with two firms, by which they undertook to pave certain streets with Nicholson pavements. These contracts, with the consent of the city, were assigned to the relator in 1868, and under them the streets were paved. Some of the work was done and some of the materials were furnished before the passage of the act of 1867, but much the greater portion was done thereafter. None of the pavements were laid in the ninth or tenth wards. It was for the work done and materials furnished under these contracts, and in consequence of the city's liability assumed in them, that the relator's judgment was recovered on the 16th of March, 1875. Such, in brief, was the origin and nature of the debt.

Though in large part the pavements were constructed after the ninth and tenth wards became a part of the city, we think, within the meaning of the act of 1869, the debt must be held as having been contracted when the contracts were made. It was then the city assumed the liability and took up the burden which is now in judgment. It appears quite plainly that the legislature, in the act of 1869, did not intend to use the word 'debt' in its technical sense. Looking at the spirit of the act rather than to its letter, the purpose evidently was to relieve the new territory brought into the city by the act of 1867 from obligations previously incurred by the city for objects in which the added territory had no interest when the obligations were assumed, and in regard to which it had no voice.

It is true the act of 1867, which made the ninth and tenth wards a part of the city, did not itself exempt them from any of the liabilities of the municipal corporation of which they became a part. It might have given such an exemption. But no discrimination was then made in their favor. The people resident in them became at once entitled to a common ownership of the city's property and privileges, subject to the same duties as those resting on others. Had the act of 1869 never been passed, it must be conceded they would have been on an exact equality with all other owners of property in the city, equally entitled with them to all municipal rights and privileges, and equally subject to all municipal burdens and charges. See cases collected in Dillon on Municipal Corporations, sects. 36, 136, 633, 634.

That act, however, was passed. In terms it relieved the people of the ninth and tenth wards from liability to pay any part of the debt of the city contracted before they came into it. It is still the law of the State, unless it violates some provision of the Constitution. The relator contends that it is in conflict with the ordinance that 'no retrospective law, or law impairing the obligation of contracts, shall be passed.' To this we cannot assent. The act was wholly prospective in its operation when it was passed. It furnished a rule only for the furture, and it interfered with no vested rights, or with the obligation of any contract. There never was any contract relation between the people of those wards and Brown, the relator. The utmost effect of the act of 1867 was to give the contractors with the city, after their contracts were made, a possibly enlarged remedy; and the act of 1869 withdrew the gift before any absolute right to it had been acquired, before the act of 1873 was passed,-the act which authorized taxation to pay the debt contracted. The same power which added the wards to the city might have severed them from it. Had they been parts of the city when the contracts were made, and subsequently been severed from it, no one could successfully contend they would have remained liable to city taxation for any city purpose. It is evident, therefore, that neither any vested right nor any contract obligation was disturbed by the act of 1869, which declared those wards exempt from taxation for any debt contracted before they were incorporated into the city.

Nor do we perceive that the act of 1869 violated any other provision of the State Constitution to which our attention has been called. It was not a law for the benefit of individuals, inconsistent with the general laws of the land; nor did it grant immunities or exemptions not extended to all individuals in like condition; nor did it deprive any person of property without the judgment of his peers or the law of the land.

It has been argued on behalf of the relator that the act violated the principles of taxation established by the Constitution, requiring taxation of all property within the taxing district, forbidding the exemption of any except such as the Constitution declares may be exempted, and requiring that taxes shall be equal and uniform. We have not been able to feel the force of this objection. We find nothing in the provisions of the Constitution to which we have been referred that justifies it. Surely the legislature is not prohibited from deciaring what districts shall be liable to taxation for local uses, and the act of 1869 was but an exertion of this power.

The second assignment of error is that the alias writ of mandamus commanded the levy of the additional tax, excluding from its operation the property on which the assessments by the front foot for the cost of the pavement had been paid. Whether the exclusion was erroneously directed or not we are not now called upon to determine, for the relator cannot be heard to insist that it was. The action of the court was in this particular exactly what he asked. He presented a petition asking that such property should be excluded from the levy, and he cannot now be permitted to complain in this court of an order made in the inferior court at his instance.

The remaining assignment of error is that the court ordered the additional levy to be made on the assessment for 1876, instead of the assessment for 1875. It does not appear certainly that such was the order of the court. It was made on the 2d of March, 1876, and it directed the mayor and council to levy the additional tax when they next levied taxes. Whether the basis of the levy was to be the assessment of 1875 or that of 1876 is not clear, nor is it a matter of any importance. It is not claimed that the aggregate assessment for the latter year was less in amount than that of the former. It is not, therefore, apparent that the relator was hurt by the order. The city is required to levy a tax sufficient in amount to yield to him the sum mentioned, and that secures his rights.

Judgment affirmed.