FEDERAL REPORTER"
vol. 42.
GIBSON COUNTY'll. PULt.MAN SOUTH. CAR CO.
(Oircuit OOUrt, W. D. Tennessee. April 28, 1890.) . ''Where Pullmlln sleeping-cars are run WhOlly within a state. the business may be taxed as a privilege. S·. BJJlB,-PROPBRTT OWNED OUTSIDE THE ST4TB. The only restriction upon this power must be fmmd in the state and federal constltutions, since every state may tax all property found within its borders, whether owned by its own citizens or foreigneJ;'s,although considerations of amity and comity usually secure the exep:1ption of property only temporarily situated within the state. while our federal constitution forbids discriminations against citizens of other states of this U n i o n . . . SAMB-DISCRIMINATIOl'-ExEMPTIONS., LAW-TAXATION-INTERST,ATE COMMERCE-SLEEPING-CARS·
a.
Where it does not appear whether sleeping-cars owned by the railroad company are exempt from taxation, an act of the legislature will not be held to make a discrimiJ;Jation. because they are not specifically taxed as a privilege, like·those run independently by others than the railroadc:iompany, because they may be otherwise equally taxed along with other property of the railroad company. or lawfully exempt under charter privileges.
,
.. SAME-CONSTRUCTION OIl' ACT-COUNTIES.
5.
The act of the legislature of Tenness.ee of 1877 (chapter 16) does not impose, when properly construed, a tax for counties upon sleeping-cars run wholly within the state. but is confined to one 'privilege tax for the state.
SAME-COUNTIES-PIUVILEGE TAX.
6.
There is in Tennessee no statute, either in the Code or elsewhere, which authorizes counties, generally. to levy always. if they choose, the same privilege tax which is provided for the state. It depends' upon each taxing statute and its amendments .wbether the county has this power. It is generally conferred, but not always, and .'Waulot in the several acts taxing sleeping-cars as a privilege.
BJJI.B;...rrITLE OIl' ACT.
The Tennessee constitution, (artiole 2" § 17,) which ,provides that no bill shall beC)()me a law which embraces more than one subject. that subjeot to be expressed in its title. does not require a taxing act to name in the title all the objects of taxation, nor confine the act to one general class of property, if the title be broad enough to : cover other classes. The tax on levied by Acts 1877,.c. 16, and Acts 1881, c. 149, is not void because of any defeot in the title, which expressed only the one subject of "taxation" with which the acts dealt. .
lnEquity. This bill was filed by Gibson county, Tenn., to recover of the Pullman Car Company a privilege tax of $50, .and$75 on each of its sleeping-cars ,rUll through Gibson county on the Louisville & Nashville and the Mobile &?;'Ohio Railroads, for the years 1877 to 1883, inclusive,amounting, with'jnterest and penalties, to $5,102.50., The tax was levied under 'authority of the Code of Tennessee, which it was claimed authorized all 'Counties in. the state to levy. thEi' privilege taxes as were levied by the state by the acts of March 9, 1877, c. 16, and of April 7, 1881,c. 149. Afterwards, the claim was abandoned as to all sleeping-cars run from another state into Tennessee, or from that state into another; and the bill was amended to demand it only for the two cars run daily between the cities of Memphis and Nashville, and wholly within the state, and through Gibson county, upon which the state had levied and collected the tax prescribed by the acts of the legislature. The agreed statement of factP. showed that the defendant's two cars passed daily through Gibson county, taking up and putting off at the stations within that county all such passengers as wished sleeping-car accommodations, issuing upon the train
GIBSON COUNTY fl. PULLMAN SOUTH. CAR CO.
573
such tickets as were required, or taking such fares as were charged. The sleeping-car cOlllpany kept no agents at the stations, and only did business as above described. There were other facts, some of which were not agreed upon, but the foregoing were stated by the court as sufficient for disposing of the case. James R. Deason, for plaintiff. William Burry, for defendant. HAMMOND, J. The trouble about this case has been that, while it has been submitted upon bill, answer, exhibits, and an agreed statement of'facts, the parties have not come to an agreement as to all the facts, and have been somewhat disagreed about them, which disagreement has not been settled by the proof, nor the pleadings, as the court understands their force and effect. Nevertheless, the court will now dispose of it solely upon the facts that have been agreed in their relation to the pleadings. It must be conceded that the state of Tennessee had the right to tax the two sleeping-cars engaged in business between Nashville and Memphis, wbolly within the state, and that, so far as the federal authority is concerned, that power of taxation is plenary. The authorities need not be cited here, since it is not necessary to support the concession made to the plaintiff on that point, and the cases in the supreme court upon the subject of state taxation, in its relation to interstate commerce, are far too numerous and well known to require any especial application of them to this case. The very lateE't of them cites the others, and fully establishes this ruling·. Western Union Tel. Co. v. Alabama State Board, 132 U. S. 472, 10 Sup. Ot. Rep. 161. It may be well enough, however, to remark in this connection that we start out, always, with the foundation principle that every state, exercising the sovereign power of taxation, may tax all .articles of property found within its borders, and all business carried on .there, whether owned and done by its own citizens orforeigners. The prOtection given while within the state is the consideration received for contribution by taxation to the exchequer of the power that protects, and the fact that the same property or business may be taxed by the home power of the foreigner, because of its authority over him and his property wherever situated, does not impose any restriction on the taxing power of the state where the property is situated or the business carried on. by him. 'fhat fact, and other considerations of amity and comity among nations, induce each to withhold, generally, any taxationbfartiCle'so'rbusiness done which are merely in transit through the territory, ·01' temporary in character; but such exemption is purely voluntary and gracious, except so far as mutual benefits derived from civilized international interco'Urse may irlfluence it. The only restrictions upon t.his plenary state of Tennessee musl be found in its own coristi· tiitlon'and that obligation of obedience it owes to the constitution of the United States: 'There being nodiscriminliti'on, in the statutes involved 'here, against the property drbusiness 'of the citizens 'Of other states, arid 'the blisinessof"ruh11ing cars ·to furnish sleeping and other comfortable
574
:FEDERAL,
voL
,accommodanoPIl ,to passengers betweenNashville, ,and, M,:emphis, .wb9lly within this,4taw, .being domestic, and ,not. <;lomm,.erce,. there cannot be. said to be any violation ,ofthe federal cOQstitution in exercisi, ' , ing the taxiQg poWe1 by them. .' . It is urged against these statutes that this tax discriminates against the defendant in favor of the railroads, be<;aulle their sleeping-cars are. not also taxed; and, under a similar act and a similar constitution, it was so held in Texas. ilir 00. v. Texas, 64 Tex. 274. The act took this form, probably, because it had ,been sOirepeatedlyheld that cars run independently of the railroads, as these were, could not be included in a taxation of the railroad property; and, if similar cars belonging to the railroad company or used by it were also tfixed as the dElfendant is, it would be the <)ourt does double taxation. But the fact does not ll-ppear not know how it may be, whether sleeping-cars ,belouging to or otherwise used by a railroad company,and engaged domestic commerce, have been otherwise taxed or not, or whether they have been otherwise equally taxed, or whether, if not taxed, the exemption be the lawful exercise of some power to exempt from taxation. Therefore our -opinion is reserved on this point, and we are content, for the purposes of this case, to accept the ruling of (Jar 00. v. Gaines, 3 ,Tenn. Ch. 587, which was, possibly, approved by the supreme court in Robbins v. Taxi'l1{J Dist., 13 Lea, 309. We do not think the objection to the. title is well taken. Wise as the provision of our constitution may be, that "no bill shall become a law which embraces more than one subject, that subject. to be expressed in the title," it is not wise to tie· the hands uf the. legislature, and embarrasa its reasonable freedom of action by subtile distinctions as to subjectmatter which shall make almost all legislation impossible. Canst. Tenn. art. 2, § 17. By a kind of metaphrastic process of interpreting the words used. by a body of men dealing with lnnguage in its ordinary meaning among practical men, not given to technical distinctions, and by hyperctitical holding to subtile discriminations in physical and other sciences, learped or astute minds may bring "more than one suuject" into almost any act of legislation, and, more easily still, may not always find the subject-matter accurately "expressed in the title," and thus defeat every -displeasing or unsatisfactory statute. All that can be required is a reasonable observance of the rule. that there shall be only one subject, whether general or special, and this shall be expressed in the title.. Hyman v. State, 87 Tenn. 109, 112,9 S. W. Rep. 372. Whether a revenue act be one with the widest scope upon the general .subject, or one for a very special and limited purpose, the subject is raisi,ng revenue by taxation; and when the title is "An act declaring the mode and manner of valuing the property of telegraph companies for taxation, and of taxing sleeping-cars," that title expresses the subject, and act does not·, embrace more than one su1:!iect,"-that of" taxation,"namely. Act 1877, Q. 16,p. 26. It has two objects in view, .no doubt, but not two subjects. Its purpose is to tax two different things,.but the sulliect-ma!ter of consideration by the legislators was that
GIBSON cbVNTY' tI. PULLMAN SOUTH. cAR CO.
575
title; The fact that this subject was considered in its elOpecial relation to telegraph property and sleeping-cars did not impose any further or other restriction on the legislature as to subject-matter and title than would have existed if it had been considering a general revenue law under that title, and had associated these two objects of taxation with innumerable others, as learned counsel seem to concede might have been done. Our supreme court has so decided, at all events. (hmwn v. Mathes, 8 Heiek. 504; State v. Whitworth, 8 Lea, 594. The case of HymrJlfl, v. State, 87 Tenn. 109, 9 S. W. Rep. 372, only decides that, if the legislature adopt a special title,and deal only with a branch or subdiVision of some general subject comprehended within the special title, that title so limited will not embrace and support ·an amendatory act enlarging the legislation to include another brarioh of the same general subject, wholly different from that contained in the original act.. That is to say, the legislature might not enlarge its objects of taxation by ingraftingon this act0f 1877, for example, under this same title; other and distinct objects of taxation; but that is not saying that, this title being special, the act cannot unite the two branches or subdivisioh& of the same subject-matter contained in it, both being covered by the special title. The principle is that the title must be broad enough to cover the subject-matter and all its subdivisions included in the act. If the legislature chooses to limit the title, it must limit the act within ,thetitlej but if it enlarges the title sufficiently it may take in all that which the title comprehends, if it be upon-the same general subject, which must be only one subject. The title inust be broad enough to cover the whole subject ofthe act in all its divisions, but there need not be a separate act for each subdivision. It is only the application of the rule that 'the less does not include the greater to the art of giving titles to statutes, under our constitution; but this decision does not conflict with the others. The rule to be learned in that act from them all is to use broad titles for the statutes, and not to endanger them by too great' particularity of expression, lest we take the subject of the act out of the title, rather than put it within. But we do not think this Act of 1877, c.16, conferred upon the county plaintiff the right to impose the taxes claimed by the bill upon the de-. fendant company, nor did it have that authority under any general law;. The contention for this depends, confessedly, upon an implication that wheneveIt the state declares a privilege, and taxes it as such, the county, may do likewise. There is no statute declaring this rule, and no decision ha.s been cited which sustains it. Neither Cannon v. Mathes, 8 lIeisk.512; Wilson v. Benton, 11 Lea, 51j nor Dun v. OuUen, 13 Lea, 202,.......so decides. In the first the suit included 'taxes for county purposes, no but this question was not even mooted, and, if it arose at all, was passed8'Ub silentio. Upon examination, it will be found that the act referred to ()f July 7,1870,.0.74, was only'one increasing a rate before that levied by So revenue statute passed February 25, 1870, c.81, which in terms a.pplied to 'Itax:ation for all state and county purposes" by its first sootiun. The later act was only an amendment of the older one,
or taxation expressed' in the
576
FEDERAL REPORTER,
, and therefore the statutes involved in that caSe in their terms applied to Counties. The same thing is true precisely of the Act of 1879, c. 79, r.eferred to in Wilson v. Benton, 11 Lea, 51; and in Dun v. OuUen,13 Lea, 202. The very act, upon the face ofit, is for county purposes as well as state, and its second section specifically levies the county taxes on propertyjand by fair implication a similar tax is authorized on privileges, prewhen it is taken in connection with its companion act, <\eding it, for the assessment of taxes "for state, county, and municipal purposes," the forty-sixth section of which declares the privileges, the act relied on by counsel here being only a supplemental act, passed the same day, fixing the rates of taxation. Act 1883, c. 105; Act 1883, c. 106, pp. 103-135. 80 it appears that neither of these cases, nor any of these acts, justifies the assumption of counsel in argument that" unless there is a restriction in the act itself, it will apply to county revenue," and this notion is the whole basis pf the assessment by the tiff ofthe taxes claimed by this bill. The argument is founded on the assertion that whenever a tax act, as this act of 187,7, under review, im-; poses a privilege tax for the state, the counties may ea.ch and everyone, and so the municipalities of lesser degree may likewise, iIllPose a privilege tax, not exceeding the state tax. unless the act' itself forbids it; because the general Code has enacted that "the polls, property, and privileges that, are taxable or exelnpt from taxation for county purposes are the same thatare taxable and exempt from taxation for state revenues." Thomp. &8. Code,§483; Mill. & V. Code, §562. Butthissectionwas only a Code declaration of the subjects of taxation by counties, as the revenue laws then were, and, as the subsequent sections in the next chapter of the Code and many others show, was tlot in itl;lelf an authority to levy taxes on those taxable articles there enumerated.,' In other words, that section of the Code was nota general authority, to counties to levy taxes, but only that part of the revenue laws indicating generally what was liable to taxation. The legislature was not by that section exercising its power" under section 29 of article 2 of the, constitution, to authorize the several counties and towns to impose taxes by directing that, whenever the state levied a particu:lar tax, the county or town might also do the same, unless excluded especially by the act. It had no such purPQse in view. The Code itself, which embbdied the revenue statutes of that day, otherwise levied county taxes, in other places, as will be seen by following the index on the subject. Ihave not examined all the tax laws of Tennessee, but I have ver.y carefully examined many of them j old and new, and do not find anywhere in the legislative habit any warrant for this assumption of counsel. I do not say that the authority of a county to levy a particular tax is always found in the very act which levies it for the state, and that it may not arise by necessary implication, as in other cases ofimplied legislation; but it will be found that the implication does not depend on the absence from the l),ct of any words excluding the county, and a general law authorizing the county in all cases to tax where the state taxes, but on the fact that. the particular act is onlya.part of.a.general systelllof many acts constituting reYenqe legis'!'
GIBSON c6tlNTV fl. Pt'LLMAM SOUTH. CAR CO.
577
lation which at the foundation had an act applying the law to counties at the same time as to theatate; towns and cities being generally left to their special charters, though they are sometimes mentioned. It is undoubtedly generally true that, whenever the state levies a tax, the counties are authorized to levy a similar tax, not exceeding the state tax or that especially fixed by the act, and this is always so, I think, in a general revenue law. There is no nicely adjusted system of revenue laws. and of all subjects of legislation these are the most characterized by want of uniformity and system, and are irregular and slipshod in habit, not to say slovenly; yet it will be seen that there is a habit about it that precludes that which the county assumes in this case, which is that once in a while a general revenue statute, or a pair or several of them, will be attempted, wherein taxes are authorized for state and county purposes, the county being always specially mentioned, and all other acts are repealed. Then commences the process of patching and tinkering, often unskillfully done and creating more confusion, but the general law remains the foundation of the amendatory legislation until the confusion becomes so great that a new start is made by allotl;ter general law, to be put through the same process of amendment as before. These amendatory acts do not always couple the county with the state, but sometimes do, and the' authority of the county depends upon the original act, as often the state levy does; also notwithstanding the amendatory acL But this is an entirely different habit from that urged here in behalf of the county, that the' Code confers a general power, and nothing excludes it hut special exclusion of the county in the particular act. So far as thea" revenue are concerned, the Codes are as transitory as the other lawa are found to be, and only embody the general foundation act in existence at the time the Code happens to be enacted. There is not an tention by a fixed Code statute togive the counties gemeral power of taiation to operate somewhat like a constitutional power would ac!, and only to be withdrawn by special exclusion of the counties,but they must, like 'state, take their chances in the constantly changing revenue enactments, and depend upon them for whatever authority they give when construed altogether. It might be a very useful. and beneficiar power far the counties to possess to be comparatively exempt from ing authority, and thus have a right to tax, absolutely, whenever the' state taxes, ,unless forbidden; but such is not our law nor our habit of legislation as anJ one will see upon careful investigation, historically and critically made. This fallacy lies at the foundation of the claim set up in this bill. :N'either the act of 1877, nor that of 1881, particularlyauthorized counties to levy a privilege taxon sleeping-cars passing through their territory, and taking up therein such travelers as might board the train in that county. The state might possibly authorize the counties to tax as a privilege, to the extent of $50 or $75, each sleeping-car so passing through a county; and under Dun v. OuUen, supra, this would mean a privilege tax for the state in each county of that sum aS'well as for that county; but it has not done this in terms, and by all the rules If)f law governing implications of legislative intention it will not, by conv.42F.no.11-37
·
.qnly, be hel<J: jp have levied so preposterouS,.lWjuet,and optlqL JusttJ:Iink ofit. These car8,2'. of theul-rtm daily 12 counties; ana,'under Dun v. Oullen, 8uPra" this ,wquld be a ta;x: on each carof$1,800, which is, as Icalculate it, something of. its revenues, if it carried ,on every day a full of 20 passengers, at $2 a berth, between Nashville and if sho'llld run through the whole1ength of the state, and as it would, over, twice as many counties, the tax would be more,· unless the charges. foj:' accommodations should .likewise be more thiln doHpled.ThiskiM of taxation would amount 'to prohibition, and especij),Uy w;hen we know the cars often run nearly empty, and this, too, '\Vhen . fares taken up in Gibson county would not possibly amount to the ta:x; in any given, year. No court will imply an intention which presents such results,. unless forced to it by a necessity that knows no denial.!tmight be a possible implication, if thE:jl,egislative habit were such ll-s 'Q<>,pnsel claims! but, in view of the habit,: we have endeavored to pOint Qu(it is impossible. The original sleeping-Cf1,r tax was a special and not foundln a general revenue law,uQr ip.tended as an e;x:tending' the county tax to that of taxation. It was a loqSf;'1lond bit of legislation in not making the intention more manifest; but in the very nature of ,the case, in view ofthe taxed, it probably never occurredtolhedraughtsman or the legislature' 'that running a sleeping-car across a a few minutes each day yv,as'such a ·doing of business in that county as would justify its taxation, $B a privilege, by 'counties., It was so incongruous in its that it did,not occur to, the legislature that relation ,to, cqunty such a be claimed. for it. And, really, no business is, carried'pn, ip.qibson,county when the car rolls through it, possibly in 6q minutes or less, and taxable county privileges are those where, the business is Joc.ated and Aonein the COl.luty. To use the illustrations of the counsel fo, the the peddler, although in one sense ry, reaIly is, for the time being, located in Gibson county, and sells a.nd so the circus shows q)lite exclusively to its population while to them for the time being; but the 'sleeping-car, wll.ile ,it may up a .Gibson county man now and then, or sell a ticket at .its stations to him who enters the cars, can hardly be said to be doing il,1 that county in such a sense as vrould justify taxing it as a. privilege by counties. while as to the whole state it. might be fair and well enough to tax.the privilege, as has been done by these acts. I.t is in the light of sucll considerations as theSe that we arrive. at the intentionj certainly, when we are asked it, in the aQ8ence of declaration to that end which ,is contrary to all sepse of just.ice. The fact that in 1883 the counties were precluded b.r tPll tax:act itseV levying this privilege tax on sleeping-cars shows, intp.eviewwehavetaken, rather that the original intention was to exc1nde,than.to authorize, it.. Dismiss tll y bill; at the plaintifl"s cost. "
H'DONALD V. UKION pAc. RY. co.
579
McDoNALD
v.
UNION
PAc. Ry. CO.'
(Circuit Oowrl, D. Oolorado. June 18,1890.)
1.
NllGLJGENClI:--:EvIDENCE-BURNtNG SLACK PILE-PERSONAL INJURIES.
The defendant dumped the slack coal froIJ;l its mine in a spal» 400 feet long, and 60 feet wide, between the mine and a town 5()O yards distant, containing 600 inhabitants. The slack pile took fire by spontaneous cOIJ;lbustion; and, slack being stautlydeposited, burned continuously. The slack-pile was not fenced, as rf;l· quirlld by a law of the state. The children, and others, living in the town, and strangersl were in the habit of visiting the IJ;Iine by a rough, irregular, and llarro'w path leadmg from the town to .the IJ;Iine, which ran along the edge of the burning slac1{·pile. .In clear, calm weather the slack-pile emitted no sIJ;loke or steaIJ;l, and, the Surface or top covered with ashes' and other incombustible matter, the fire could not be.seen, and person6 having no previous knowledge of its existence could not detect its presence. The plaintiff, a boy untler 13 years of age, who was a atl'lJ.nger in the town, and who had no knowled!!:e of the fire in the slack-pile; having gone from the town to the mine to witnesslts operatjon, was frightened by some of the workmen, and, in running towards the hotel in the town where he and his mother were stopping, ran into the burning alack-pile, and was severely burned. Held, the defendant was guilty of negligence, and liable in damages to the plain. tiff for the injuries he sustained.
2.
It ia the province of the jury, haVing due regard to the instmctions of the court applicable to that issue, to assess the damages for a persQnal'injury; and this is one of the functions of a jury which the court has no right to invade or interfere with, except where it has reason to believe that the verdict is the result of passion or pl1ljndice, or of a misunderstanding of the instructions, or a disregard of them; and for a judge to substitute the damagea he would assesa, acting himself as a jury, in the place of the damages the jury have assessed, for nQ Qther reason than that he thinkll he is a better judge of the facts than the jury, is an invasion of the province of the jury, and a violation of the constitutional rigtt of the suitor to have his cau!>6 tried by a jury, and the questiona offact in it determined by their verdict. (SyUabuB bv the OoUTt.)
SAlIIE-DAMAGES-PROVINCE OJ!' COURT AND JURY.
At Law. For opinion on demurrer to complaint, see 35 Fed. Rep. 38. 'fhe following are the provisions of the Colorado Statutes in regard to fencing piles of slack coal referred to in the charge of the court: "Section 1. That the owner or operators of coal mines from which fine or slack coal is taken and piled upon the surface of the ground, in such quantities as to produce spontaneous combustion, shall fence said ground in SUCll manner as to prevent loose cattle or horses from having access to such slackpiles. " "Sec. 3. Every person Violating sections one (1) and two (2) of this act shall be deemed guilty of a misdemeanor, and shall be fined in a sum not less than twenty (20) dollars, nor more than one hundred (100) dollars, to be collected as other fines are collected, and shall be further liable to any party injured thereby in the amount of the actual injury sustained."
J. W. Mdls, for plaintiff. Teller&: Oralwod, for defendant.
CALDWELL, J., (charging jury.) The foundation of the plaintiff's action is the charge of negligence against the defendant. Negligence is the omission to do something which the law enjoins, or which a reasonably prudent man would do under like circumstances, or the doing of something which a prudent and reasonable man would not do under the