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we have said shows the essential differences

between all of these cases and the present one. Besides those differences, most of the cases referred to were distinguished by the presence of large public interests, to be subserved by specific performance and the absence of any adequate legal remedy.

The subject need not be pursued further. The difficulties pointed out seem to us to be insuperable, for which reason the judgment must be reversed, and judgment here rendered for defendant.

TENNESSEE SUPREME COURT.

M. D. ARNOLD et al.

V.

MAYOR, ETC., OF KNOXVILLE, Appts. (Tenn., 90 S. W. 469.)

Tax-special assessment.

Special assessments for local improvements are not taxes within the meaning of the constitutional provision that taxation shall be equal and uniform throughout the state, county, or municipality laying the tax.

PPEAL by defendants from a decree of the Chancery Court for Knox County overruling a demurrer to a bill filed to enjoin proceedings to levy assessments for local improvements. Reversed.

The facts are stated in the opinion.

Messrs. J. W. Culton, Horace Van Deventer, and C. W. Barber, with Mr. Joshua W. Caldwell, for appellants:

The rule of uniformity does not apply to. special assessments.

Provident Inst. for Savings v. Jersey City, 113 U. S. 506, 28 L. ed. 1102, 5 Sup. Ct. Rep. 612; Tonawanda v. Lyon, 181 U. S. 389, 45 L. ed. 908, 21 Sup. Ct. Rep. 609; Webster v. Fargo, 181 U. S. 394, 395, 45 L. ed. 912, 21 Sup. Ct. Rep. 623; Cass Farm Co. v. Detroit, 181 U. S. 396, 45 L. ed. 914, 89 Ala. 461, 8 L.R.A. 369, 7 So. 386; Ed21 Sup. Ct. Rep. 644; Birmingham v. Klein, gerton v. Green Cove Springs, 19 Fla. 140; Hayden v. Atlanta, 70 Ga. 817; Speer v. Athens, 85 Ga. 49, 9 L.R.A. 402, 11 S. E. 802; Hines v. Leavenworth, 3 Kan. 186; Moore v. Paola, 63 Kan. 867, 66 Pac. 1040; State v. New Orleans, 15 La. Ann. 354; Jones v. Holzapfel, 11 Okla. 405, 68 Pac. 511; Tripp v. Yankton, 10 S. D. 516, 74 N. W. 447; Spencer v. Merchant, 125 U. S. 355, 31 L. ed. 767, 8 Sup. Ct. Rep. 921; Louisiana v. Pilsbury, 105 U. S. 295, 26 L. ed. 1096; Illinois C. R. Co. v. Decatur, 147 Case Note. The discussion, in ARNOLD V. Weston v. Shawano County, 44 Wis. 256; KNOXVILLE, of the question whether a spe-Yates v. Milwaukee, 92 Wis. 352, 66 N. W. cial assessment is a tax within constitutional provisions relating to uniformity of taxation, is so full, and the quotations from the authorities so copious, that such further review of the topic as might be compassed within the limits of a note of this kind seems superfluous.

(Neil and McAlister, JJ., dissent.)

(December 4, 1905.)

291; Louisville v. McNaughten, 19 Ky. L. Rep. 1695, 44 S. W. 380; Kansas City Exposition Driving Park v. Kansas City, 174 Mo. 426, 74 S. W. 979.

The exemption of property purchased with pension money from taxation does not extend to assessments for street improvements. Re Floyd, 24 Misc. 359, 53 N. Y. Supp. 709; Tucker v. Utica, 35 App. Div. 173, 54 N. Y. Supp. 855.

248; Cassady v. Hammer, 62 Iowa, 359, 17 N. W. 588; Codman v. Johnson, 104 Mass. 491: Bleecker v. Ballou, 3 Wend. 263; Daily v. Swope, 47 Miss. 367; Farrar v. St. Louis, 80 Mo. 379; Farwell v. Des Moines Brick Mfg. Co. 97 Iowa, 286, 35 L.R.A. 63, 66 N. W. 176; Ford v. Delta & P. Land Co. 164 In this connection, it may be interesting U. S. 662, 41 L. ed. 590, 17 Sup. Ct. Rep. to note, however, that the commonly ac- 230; San Diego v. Linda Vista Irrig. Discepted distinction between special assess-trict, 108 Cal. 189, 35 L.R.A. 33, 41 Pac. ments and taxation runs, also, through the cases in which the question of exemption is involved. Accordingly, and under the rule that exemptions are to be construed strictly, it has frequently been held that exemption from taxation is not, of necessity, exemption from assessment for local improvements. Atlanta v. First Presby. Church, 86 Ga. 730, 12 L.R.A. 852, 13 S. E. 252; Coulson v. Harris, 43 Miss. 728; State ex rel. Chicago, B. & Q. R. Co. v. Kansas City, 89 Mo. 34, The property of churches and other reli14 S. W. 515; State, Gorum, Prosecutor, v. gious institutions is not exempted from local Mills, 34 N. J. L. 177; State, Protestant assessment by the fact that they are, by Foster Home Soc., Prosecutor, v. Newark, 35 public policy or the statutes of the state, N. J. L. 157, 10 Am. Rep. 223; People ex-exempt from general taxation. Re New rel. Commonwealth Ins. Co. v. Coleman, 121 N. Y. 542, 25 N. E. 51; Crawford v. Burrell Twp. 53 Pa. 219; Wilkinsburg v. Home for Aged Women, 131 Pa. 109, 6 L.R.A. 531, 18 Atl. 937; West Wisconsin R. Co. v. Trempealeau County, 93 U. S. 598, 23 L. ed. 815; Hale v. Kenosha, 29 Wis. 599; Dalrymple v. Milwaukee, 53 Wis. 178, 10 N. W. 141;

York, 11 Johns. 77; Harrisburg v. St.
Paul's Church, 5 Pa. Dist. R. 351; Lock-
wood v. St. Louis, 24 Mo. 20; Atlanta v.
First Presby. Church, supra; Methodist
Episcopal Church, South, Book Agents v.
Hinton, 92 Tenn. 188, 19 L.R.A. 289, 21 S.
W. 321; Illinois & M. Canal v. Chicago,
12 Ill. 403; Ottawa v. Free Church, 20 Ill.

Mr. John W. Green for appellees.

Wilkes, J., delivered the opinion of the court:

This cause questions the constitutionality of chapter 278, p. 585, of the Acts of 1905.

The act, in substance, provides for the creation of improvement districts in the city of Knoxville, and the payment of the expenses incurred thereby for public improvements by special assessments on abutting property.

U. S. 198, 37 L. ed. 134, 13 Sup. Ct. Rep. | Conn. 189, 60 Am. Dec. 636; Re Dorrance 293; Detroit v. Parker, 181 U. S. 399, 45 Street, 4 R. I. 231; Woodhouse v. BurlingL. ed. 917, 21 Sup. Ct. Rep. 624; Shumate ton, 47 Vt. 301; Mauldin v. Greenville, 42 v. Heman, 181 U. S. 402, 45 L. ed. 922, 21 S. C. 293, 27 L.R.A. 284, 46 Am. St. Rep. Sup. Ct. Rep. 645; Wight v. Davidson, 181 731, 20 S. E. 842. U. S. 371, 45 L. ed. 900, 21 Sup. Ct. Rep. 616; Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; 2 Cooley, Taxn. 3d ed. p. 1154; Re Madera Irrig. Dist. Bonds, 92 Cal. 296, '14 L.R.A. 767, 27 Am. St. Rep. 106, 28 Pac. 272, 675; Raleigh v. Peace, 110 N. C. 32, 17 L.R.A. 332, 333, 14 S. E. 521; Sears v. Boston, 173 Mass. 71, 43 L.R.A. 836, 837, 53 N. E. 138; Huston v. Tribbetts, 171 Ill. 547, 63 Am. St. Rep. 275, 49 N. E. 711; Barber Asphalt Paving Co. v. French, 158 Mo. 534, 54 L.R.A. 498, 58 S. W. 934, 181 U. S. 324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625; King v. Portland, 38 Or. 402, 55 L.R. A. 817, 63 Pac. 2; Schaefer v. Werling, 188 U. S. 516, 47 L. ed. 570, 23 Sup. Ct. Rep. 449; Monroe County v. Rochester, 154 N. Y. 570, 49 N. E. 139; Iowa Pipe & Tile Co. v. Callanan, 125 lowa, 358, 67 L.R.A. 408, 106 Am. St. Rep. 311, 101 N. W. 141; Alexander v. Baltimore, 5 Gill, 383, 46 Am. Dec. 630; Moale v. Baltimore, 5 Md. 314, 61 Am. Dec. 276; Nichols v. Bridgeport, 23 423; Chicago v. Baptist Theological Union. | 115 Ill. 245, 2 N. E. 254; Broadway Baptist Church v. McAtee, 8 Bush, 508, 8 Am. Rep. 480; Harlem Presby. Church v. New York, 5 Hun, 442.

The caption of the act, which sets out its purpose, is as follows:

"An Act to Provide for the Creation of Improvement Districts for the Purpose of Opening, Widening, Extending, Grading, Curbing, Guttering, Paving, Gravelling, Macadamizing, Parking, Laying Permanent Sewers on, upon, or in Any Street, Highway, Avenue, or Alley, within the Corporate Limits of Any Town in This State, Having a 10 Am. Rep. 223, 36 N. J. L. 478, 13 Am. Rep. 464; Boston Soc. of Redemptorist Fathers v. Boston, 129 Mass. 178; Boston Seamen's Friend Soc. v. Boston, 116 Mass. 181; Kilgus v. Orphanage of Good ShepThe exemption of graveyards or ceme herd, 94 Ky. 439, 22 S. W. 570; Zable v. teries from taxation does not extend to as- Louisville Baptist Orphans' Home, 92 Ky. sessments for local improvements. Bloom- 89, 13 L.R.A. 668, 17 S. W. 212; Sheehan ington Cemetery Asso. v. People, 139 Ill. v. Good Samaritan Hospital, 50 Mo. 155, 16, 28 N. E. 1076; Baltimore v. Green Mt. 11 Am. Rep. 412; Lafayette v. Male Orphan Cemetery, 7 Md. 517; Dolan v. Baltimore, Asylum, 4 La. Ann. 1; Roosevelt Hospital 4 Gill, 394; Buffalo City Cemetery v. Buf- v. New York, 84 N. Y. 108; Dyker Meadow falo, 46 N. Y. 506; New Castle City v. Land & Improv. Co. v. Cook, 3 App. Div. Stone Church Graveyard, 172 Pa. 86, 33 164, 38 N. Y. Supp. 222; Philadelphia v. Atl. 236; Beltzhoover v. Beltzhoover, 173 Pennsylvania Hospital, 143 Pa. 367, 22 Atl. Pa. 213, 33 Atl. 1047; Lima v. Lima Ceme-744; Martin v. Charleston, 13 Rich. Eq. 50; tery Asso. 42 Ohio St. 128, 51 Am. Rep. 809; Batterman v. New York, 65 App. Div. 576, 73 N. Y. Supp. 44; Philadelphia v. Union Burial Ground Soc. 178 Pa. 533, 36 L.R.A. 263, 36 Atl. 172.

Philadelphia use of Richardson v. Girard, 9
Pa. Dist. R. 273; Boston Asylum v. Street
Comrs. 180 Mass. 485, 62 N. E. 961;
Washburn Memorial Orphan Asylum v.
State, 73 Minn. 343, 76 N. W. 201.

And of public school property. Board of Improvement v. School District, 56 Ark. 354, 16 L.R.A. 418, 35 Am. St. Rep. 108, 19 S. W. 969; Re Harding Street Sewer, 31 Pittsb. L. J. N. S. 147.

The same rule is applied in construing exemptions from taxation of property owned and used by educational institutions. Harvard College v. Boston, 104 Mass. 470; Worcester Agri. Soc. v. Worcester, 116 Mass. 189; State v. Robertson, 24 N. J. L. And of quasi-public property. State, 504; Chegaray v. Jenkins, 3 Sandf. 409; New Jersey R. & Transp. Co., Prosecutor, Thiel College v. Mercer County, 101 Pa. v. Newark, 27 N. J. L. 185; Chicago & N. 530; Donohugh's Appeal, 86 Pa. 306; Re W. R. Co. v. People, 120 Ill. 104, 11 N. E. College Street, 8 R. I. 474: Marks v. Pur-418; State ex rel. Chicago, B. & Q. R. Co. due University, 37 Ind. 155; Sioux City v. Independent School District, 55 Iowa, 150, 7 N. W. 488; Paterson v. Society for Establishment Useful Manufactures, 24 N. J. L. 385.

And of property devoted to public charities. State, Protestant Foster Home Soc., Prosecutors, v. Newark, 35 N. J. L. 157,

v. Kansas City, 89 Mo. 34, 14 S. W. 515; Philadelphia, W. & B. R. Co. v. Bayless, 2 Gill, 355.

It has also been held that the power to sell for taxes is not the power to sell for assessments for benefits. Sharp v. Spier, 4 Hill, 76.

It is insisted that any improvement of a

Population of not Less than 32,000, nor | property within them; but will be exempt More than 75,000 Inhabitants, According to from the special tax. the Federal Census of 1900, or Any Subsequent Census; to Provide for the Appoint-public nature in the city should be paid for ment of Improvement District Commis- by all the property owners of the city. sioners for Said Improvement Districts; to Provide a Method of Assessing a Part of the Cost of Said Improvements upon the Land Lying in, Abutting on, or Adjacent to, Said Improvement Districts, and of Paying for Said Improvements; and to Authorize the Issuance of Bonds, or Certificates to Pay for the Same, and the Redemption of Said Bonds."

The bill was filed by two taxpayers and citizens of Knoxville, owning real estate affected by this act and the ordinance of the city passed thereunder establishing improvement districts, to enjoin proceedings to make assessments as the act provides.

Complainants allege that they have paid all taxes legally assessed or assessable against their property, and they charge that the special assessment attempted to be levied for street improvements is illegal, because unconstitutional, in that it violates article 2, § 28, of that instrument, which provides that "all property shall be taxed according to its value, that value to be ascertained in such manner as the legislature shall direct, so that taxes shall be equal and uniform throughout the state."

The text of the constitutional provision is as follows:

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Article 2, § 28: "All property, real, personal, or mixed, shall be taxed. All property shall be taxed according to its value, that value to be ascertained in such manner as the legislature shall direct so that taxes shall be equal and uniform throughout the state. 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. But the leg. islature shall have power to tax merchants, peddlers, and privileges in such manner as they may from time to time direct."

Section 29. "The general assembly shall have power to authorize the several counties and incorporated towns in this state to impose taxes for county and corporation purposes respectively, in such manner as shall be prescribed by law; and all property shall be taxed according to its value, upon the principles established in regard to state taxation."

The bill is filed to enjoin the further execution of the act, and various allegations are made to point out wherein the act is invalid, unjust, oppressive, and unconstitutional.

It is alleged that property adjacent to complainants', but outside the improved districts, will be benefited not less than the

It is alleged that the act in question is illegal for the further reason that the improvements on the real estate assessed under it are exempt from the operation thereof, and because the assessments do not extend to personal property, and because the act imposes burdens of taxation which are not equal and uniform, and do not apply to all property.

It is denied that the city had the right to "divide itself wholly, or partly, into improvement districts," and impose taxes on persons owning property in such districts, which are not imposed upon others, or to impose a different rate of taxation upon property owners in different districts.

They allege that under said act the defendant is taking their property for public purposes without just compensation and without due process of law, and is thereby attacking their privileges and immunities as citizens of the United States, and is casting a cloud upon their titles.

Finally, they allege that the city is using all possible haste to put said act and the ordinances passed in pursuance of it into operation; and they prayed that said act and ordinances may be decreed to be unconstitutional and void, and for preliminary and perpetual injunction.

The bill was demurred to by the city, and the demurrer was overruled, and the city has appealed.

No question is made but that injunction is the proper remedy, if complainants are entitled to relief upon the ground that the assessment is illegal and invalid. See Norwood v. Baker, 172 U. S. 292, 43 L. ed. 452, 19 Sup. Ct. Rep. 187.

The sole question presented in this case is the validity of laws authorizing special assessments for local improvements.

It is insisted by complainants that this question has been settled in this state for more than thirty years; the leading case being that of McBean v. Chandler, 9 Heisk. 349, 24 Am. Rep. 308, and since followed in a number of cases, the most important being the case of Reelfoot Lake Levee District v. Dawson, 97 Tenn. 151, 34 L.R.A. 725, 36 S. W. 1041.

It is conceded that, if the doctrine laid down in these cases and on which they rest is adhered to, the constitutionality of the present act cannot be maintained; and we are earnestly asked to overrule them or modify them.

Counsel for the city, in making this request of the court, does so with due defer

ence to the rule laid down in Coleman v. | burden of taxation could not be laid upon Campbell, 3 Tenn. Cas. 355, that contempo- any territory less than the whole state, a rary construction of a constitutional pro- county tax must be laid upon the entire vision, which has been long acquiesced in, county, and a city tax upon the whole of is entitled to great weight in determining the city; and these requirements are dethe meaning of the same. nominated as fundamental.

This court recognizes to its fullest extent the necessity for stability, consistency, and a firm adherence to the doctrine of stare decisis in passing upon and construing any provision of the organic law; but, if an error has been committed, and becomes plain and palpable, the court will not decline to correct it, even though it may have been reasserted and acquiesced in for a long number of years.

The case of McBean v. Chandler, supra, was decided by judges who have had no superiors in our judicial history, and after a most painstaking and laborious consider ation, and a presentation by an array of counsel of ability rarely to be found in any case; and the opinion is able, comprehensive, exhaustive, and learned.

Granting the premises therein laid down as the controlling feature in the case, and the conclusion reached is inevitable and irresistible.

This controlling feature may be briefly stated to be that special assessments for local purposes fall within the meaning of taxes in the sense in which that term is used in our Constitution, and hence they cannot be maintained, because they are not imposed upon the entire property of a state, county, or municipality, but only upon real estate in a particular locality; that they are not equal and uniform within the state, county, or municipality, as the case may be, and not laid according to value. If we grant that special assessments for local purposes fall within the provisions of article 2, §§ 28 and 29, of the Constitution, and are taxes within the meaning of those sections, then they cannot be sustained as constitutional, and the present act must be declared invalid.

It was further held that the Constitution of Tennessee does not recognize the principle that taxation may be apportioned according to benefits received, but that all taxation must be imposed upon the fundamental principles of equality and uniformity; and this, necessarily and expressly, excludes the power to levy a tax upon any other basis or principle, either for general or local purposes.

It was also held that the constitutional provision provided the only legitimate means and modes of providing revenues for the state, counties, and municipal corporations, and such revenues could only be raised under that authority, and in the manner prescribed by it, and that no change in name, such as calling the imposition a special assessment, could change the essential nature of the thing, so as to escape constitutional regulation, by a mere play upon words, or by giving the laying of taxes a different name or designation.

It was further held that, apart from the exercise of the taxing power, property cannot be taken to satisfy what is called a "special assessment," unless under the exercise of eminent domain, and then by making just compensation to the individual, and not to the public generally.

It was also held that an assessment for improvements, based on the frontage of lots on the streets to be improved, was absolutely void, and contained no element of equality and uniformity, if considered as a tax, and gave no compensation to the lot owners, if considered as an exercise of eminent domain.

The text-books on constitutional and municipal law present an unbroken line in opposition to the doctrines thus laid down, and are based upon the view that there is a material and fundamental difference between special assessments for local purposes and general taxation for governmental purposes, as provided in the Constitutions of the various states.

The McBean Case and the other cases based upon it, especially the Reelfoot Lake Case, are founded upon the ruling that special assessments do fall within the provisions of these sections, and, the provisions of the statute authorizing them not being in conformity with the fundamental prin- Mr. Dillon, in his work on Municipal Corciples of equality, uniformity, and general-porations (voi. 2, § 761), says, in substance: ity, such statute is invalid.

"A local assessment upon property immediately and specially benefited by a local improvement of a street

is distinguishable in many respects from a tax lev

This question is therefore the crucial one in the case; and with it decided there remains but little ground for controversy. Briefly stated, it was held in the McBeanied for the general purposes of the state Case that taxes could be laid for public purposes only and according to some rule of apportionment, and that equality was of the essence of the power. Hence, a state

or the general purposes of the municipality. The soundness or reasonableness of this proposition is recognized by the legislation of Parliament, which has constantly dis

tinguished between taxes for the benefit of the whole Kingdom and those laid for the improvement of a particular district. It is also recognized by the legislation of perhaps every state in the Union. Hence, as is elsewhere shown, a statutable exemption of designated property from 'taxation' does not include an exemption from local assessments. Hence, also, as we have already seen, provisions in state constitutions concerning equality of 'taxation' are generally, although not invariably, held not to apply by their intrinsic force to local assessments."

made by the persons receiving it. The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay. This is the idea that underlies all these levies."

Judson on Taxation, § 355, says: "Special assessments for local improvements are Smith, in his treatise on Modern Law of made under the sovereign power of taxaMunicipal Corporations (§ 1228a), says: tion; yet they are clearly distinguished from "A special assessment, or local assessment, regular tax levies made under state auas it is frequently called, is a species of thority for general public purposes. Taxes taxation imposed by municipalities for the proper, or general taxes, it was said by the purpose of local improvement, and is based supreme court, proceed upon the theory that upon the assumption that the property in the cost of government is a necessity, that the locality of a proposed improvement will it cannot continue without means to pay be specially and peculiarly benefited there- its expenses, that for those means it has by, by which a duty is imposed upon the the right to compel all citizens and propowners to contribute an amount in payment erty within its limits to contribute, and of the cost of the improvement equal to the that for such contribution it renders no benefits received. There are manifestly special benefit, but only secures to the citimany improvements in which the inhabit-zen that general benefit, which results from ants of a municipality in the aggregate are the protection of his person and property but remotely interested, but which add ma- and the promotion of those various schemes terially to the value of the neighboring which have for their object the welfare of property as well as to the convenience, safe- all. On the other hand, special assessments, ty, and enjoyment of local residents. Spe- or special taxes, are justified by the princial assessments rest upon the ground that ciple that, when a local improvement enspecial burdens may be imposed for special hances the value of neighboring property, or peculiar benefits accruing from pub- that property should pay the expense. Spelic improvements. It is obvious that in a cial assessments are made upon the assumpmatter of local improvement a burden ought tion that a portion of the community will not to be imposed on the whole for the be specially and peculiarly benefited by the benefit of a few. In other words, general enhancement of the value of property petaxation for merely local purposes is not culiarly situated as regards the contemonly unjust, but is not a legitimate func-plated expenditure of public funds; and, in tion of government." addition to the general levy, special contri

1 Desty on Taxation, p. 4, says: "The law makes a plain distinction between taxes which are burdens or charges imposed upon persons or property to raise money for public purposes, and assessments for city and village improvements, which are not regarded as burdens, but as an equivalent or compensation for the enhanced value which the property of the person assessed has derived from the improvement."

Judge Cooley (Taxation, vol. 2, 3d ed.butions in consideration of the special bene1153) says: "Special assessments are a fit are required from the party specially peculiar species of taxation, standing apart benefited." from the general burdens imposed for state and municipal purposes, and governed by principles that do not apply universally. The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the person taxed, beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds, and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be

In Elliott on Roads & Streets, 2d ed. § 543, it is said: "A distinction is made between local assessments and taxes levied for general revenue purposes. The question has been before the courts time and time again, and the almost unruffled current of judicial opinion is that an assessment for a local improvement is not a tax within the meaning of the constitutional provisions requiring

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