Opinion
Opinion filed March 14, 1931.
1. PLEADING AND PRACTICE. Equity. Where bill contains no merit, proper practice is to dismiss it rather than to dissolve injunction.
Where the only question involved is the validity of a statute, the enforcement of which is sought to be enjoined by bill in equity, and where the chancellor is of the opinion that the bill is without merit, the proper practice is to dismiss the bill rather than to dissolve the temporary injunction previously granted. (Post, p. 231.)
Case cited and approved: Mengle Box Co. v. Lauderdale County, 144 Tenn. (17 Thomp.), 266.
2. TAXATION. Constitutional law. Special legislation. Legislature may authorize special tax for road purposes for particular county.
The Legislature has power to impose a special tax for road purposes for a particular county. (Post, p. 232.)
Cases cited and approved: N.C. St. L. Ry. v. Marshall County, 161 Tenn. (8 Smith), 240; Stokes v. Dobbins, 158 Tenn. (5 Smith), 350; Wilson v. State, 143 Tenn. (16 Thomp.), 85; Ogilvie v. Hailey, 141 Tenn. (14 Thomp.), 392.
3. CONSTITUTIONAL LAW. Taxation. Levy of specified privilege tax upon all automobiles and trucks without other classification is not invalid.
That a taxing statute requires all passenger automobiles to pay the same privilege tax and requires all trucks to pay the same privilege tax, regardless of the value of such passenger cars or trucks, does not constitute so unreasonable a classification as to render the tax arbitrary and invalid. (Post, p. 232.)
Act cited: Private Acts 1929, ch. 868.
Case cited and approved: Ogilvie v. Hailey, 141 Tenn. (14 Thomp.), 392.
4. CONSTITUTIONAL LAW. Statutes. Residents of county levying tax are not entitled to question validity of tax on grounds that it is not limited to residents of county.
Persons residing in a county which by special Act has levied a privilege tax upon all automobiles and trucks operating upon the roads of the county are not entitled to question the validity of the Act upon the ground that it is invalid because not limited to the residents of the county. (Post, p. 232.)
Case cited and approved: Darnell v. Shepard, 156 Tenn. (3 Smith), 544.
5. STATUTES. Taxation. Act conferring power of taxation upon "county court" refers to quarterly county court.
The provision in an Act which confers upon the county court the right to levy a special tax refers to the quarterly county court. (Post, p. 232.)
Act cited and construed: Private Acts 1929, ch. 868.
Case cited and approved: Davis v. Williams, 158 Tenn. (5 Smith), 34.
6. TAXATION. Licenses. Use of automobiles may be taxed as privilege.
The use of automobiles or trucks upon the public roads of a county may be taxed as a privilege. (Post, p. 232.)
Case cited and approved: Ogilvie v. Hailey, 141 Tenn. (14 Thomp.), 392.
7. STATUTES. Taxation. Special privilege tax upon operation of automobiles and trucks does not conflict with privilege tax upon operation of automobiles and busses for hire.
An Act which levies a special privilege tax upon the operation of automobiles and trucks upon the public roads of a county does not conflict with the provision of the General Revenue Act, which imposes a privilege tax upon persons operating automobiles and busses for hire. (Post, p. 233.)
Acts cited and construed: Acts 1927, ch. 89, sec. 4; Private Acts 1929, ch. 868.
8. STATUTES. Constitutional law. Where special act gives one rights he does not possess under the general law, he cannot complain of the deviation.
A provision of a special Act gave justices of the peace jurisdiction to try any offense declared to be a misdemeanor by any section of the Act; and if any party were found guilty, to assess the fine and upon failure of the offender to pay or to secure the fine, to bind him over. Held: Such law gives an offender the same right as under the general law, with the additional right when he does not plead guilty to pay or secure the fine and avoid being bound over. Of this additional advantage he cannot complain. (Post, p. 233.)
Act cited and construed: Private Acts 1929, ch. 868, sec. 27.
9. CONSTITUTIONAL LAW. Right to a jury trial. Special Act considered and held not to deprive accused of right to jury trial.
The special road law for Benton County, certain violations of which are declared to be a misdemeanor, does not deprive an accused of the right to a jury trial; but if it did, none of his constitutional rights would be thereby invaded. (Post, p. 234.)
Act cited and construed: Private Acts 1929, ch. 868.
Case cited and approved: State v. Sexton, 121 Tenn. (14 Cates), 35.
10. CONSTITUTIONAL LAW. Unpopularity of act does not affect constitutionality.
The fact that an act is unpopular does not afford the courts power to grant relief, so long as the legislature has not gone beyond the limits of the Constitution. (Post, p. 234.)
Act held constitutional: Private Acts 1929, ch. 868.
FROM BENTON.Appeal from the Chancery Court of Benton County. — HON. TOM C. RYE, Chancellor.
J.C.R. McCALL, for complainants, appellants.
PEELER PEELER, for defendant, appellee.
The bill attacks the constitutionality of Private Acts of 1929, chapter 868, a special road law for Benton County.
The cause was heard before the chancellor upon motion to dissolve the temporary injunction, which motion was sustained. The chancellor being of the opinion that the bill was without merit, dismissed same of his own motion, and complainants have appealed. This is a proper practice since the only question involved is the validity of the above act. Mengle Box Co. v. Lauderdale County, 144 Tenn. 266, 230 S.W. 963.
The act in question provides a system for the laying out, building, and maintaining of public roads in Benton County. It provides the means and methods by which revenue is to be raised for such purposes. Section 38 directs that the county court shall annually levy a privilege tax of $3 on each automobile passenger car and $5 on each automobile truck operated upon the public roads of the county. The operation of said cars and trucks without paying this privilege tax is declared a misdemeanor, subjecting the owner to a fine of not less than $10 nor more than $25, and the grand jury is given inquisitorial powers over such offenses.
The power of the legislature to impose a special tax of this nature for a particular county is now so well established that it is only necessary to cite a few recent decisions dealing with this question. N.C. St. L. Ry. v. Marshall County, 161 Tenn. 240, 30 (2d) S.W., 268; Stokes v. Dobbins, 158 Tenn. 350, 13 (2d) S.W., 321; Wilson v. State, 143 Tenn. 55, 224 S.W. 168; Ogilvie v. Hailey, 141 Tenn. 392, 210 S.W. 645.
It is said that the tax is arbitrary because the owner of a Ford car is required to pay the same amount as the owner of a Cadillac car. We consider the classification a reasonable one. Ogilvie v. Hailey, supra.
Counsel insist that the act is invalid because not limited to residents of Benton County. Complainants are residents of that county and cannot, therefore, raise this question. Darnell v. Shepard, 156 Tenn. 544, 3 (2d) S.W., 661.
The further point is made that the act confers upon the county court, as distinguished from the quarterly county court, the right to levy this tax, and that the former is without authority to exercise such power. We hold that this authority is conferred upon the quarterly county court. Davis v. Williams, 158 Tenn. 34, 12 (2d) S.W., 532.
It is said that this privilege tax is not on a business, occupation, pursuit, or vocation, and that it is, therefore, a property tax. It was held otherwise in Ogilvie v. Hailey, supra.
The contention is made that the act conflicts with the General Revenue Act, chapter 89, section 4, Acts of 1927, which imposes a privilege tax on automobiles and busses. This latter act refers to persons engaged in operating automobiles and busses for hire, and is not, therefore, antagonistic to the former act.
An attack is made on section 27 of the act, which is as follows:
"That any Justice of the Peace of counties coming under the provisions of this Act is hereby given jurisdiction to try any offense declared to be a misdemeanor by any section of this Act, and if any party is found guilty by plea or evidence to assess the fine prescribed therefor within its limits, or at his discretion, and upon failure of the offender to secure or pay such fine bind him over to await the action of the grand jury taking the offender's personally secured bond therefor in the penalty of $250 or in the absence of filing such appearance bond commit such offender to the County jail until such bond is given or he is otherwise discharged according to law."
It is urged that under this section the Justices of the Peace of Benton County are given authority to impose a fine even where the accused does not plead guilty, which is contrary to the general law of the State. While this section is somewhat involved, we are unable to find anything therein of which the accused can complain. Under the general law he can submit to a fine or be bound over. He has the same right under this act. He has the further right even when he does not submit to pay or secure the fine imposed, and avoid being bound over. Should he elect not to pay or secure the fine, he is bound over and the fine does not become effective. Or to state it differently, the justice can say to him you can pay a fine of so much or be bound over. This, it seems to us, gives him an advantage of which he cannot complain.
Finally, it is said that this act deprives the accused of the right to a jury trial. We think otherwise, but if it did none of his constitutional rights would be thereby invaded. State v. Sexton, 121 Tenn. 35, 114 S.W. 494.
It is stated by counsel that this act is very unpopular in Benton County. We have never heard of any statute being popular that exacted taxes. That, however, is a matter as to which this court is without power to grant relief. The remedy of the taxpayer is an appeal to the legislature. The legislature has enacted many laws of this character, and we see no basis for holding them illegal. Roads cannot be constructed and maintained without money, and the only means of acquiring it is by taxation. There have always existed divergent views as to the best methods to employ in raising revenue upon which to operate the government. When the legislature determines the matter, the courts are powerless to interfere so long as they do not go beyond the limits of the constitution.
The validity of this statute is well sustained by the principles announced in the cases referred to herein, which make an extended discussion of the questions raised unnecessary.
Affirmed.