^B M7 m? icrosoft Cornoratio archive. ora/details/diaestoftaxlawsoOOl ^ DIGEST /'^^ UNIVERSIT T OF THE Tax Laws of Tennessee AND CRIMINAL COST LAWS WITH ANNOTATIONS 1907 PREPARED BY ROBERT T. SHANNON FOR FRANK DIBRELL Comptroller of the State Treasury Nashville, Tenn. McQuiDDY Printing Company 1907 pOCUWENTS Uxj^ PREFACE. The statutes are reproduced in full without alteration, ex- cept that they are put in the enacted form as existing stat- utes instead of the enacting form, and the titles and enacting clauses are omitted. Where a wrong word or an omission occurs in the original, the correction suggested is put in brack- ets immediately after such word. The sections of the origi- nal statutes are often subdivided into subsections so that the subject-matter may be indicated in the index line. The statutes embraced in this Digest are annotated by notes of the decisions of the supreme court in any way con- struing and affecting them, or bearing upon them or the gen- eral subject within their scope. The criminal cost laws given may in some of their general provisions apply to civil as well as criminal cases, but no at- tempt is made to give cost laws that apply to civil cases alone. The comptroller's office has nothing to do with costs other than criminal costs, or other costs expressly allowed against the State. Attention is called to the construction and constitutionality of statutes, wherever it is thought that the suggestions will be of any value. But no pretense is made that the proper interpretation is given or attempted to be given to all statutes that may require construction, nor is it pretended that the constitutionality of all the statutes is correctly stated, or even attempted to be stated. The construction and constitution- ality of statutes can only be authoritatively settled or deter- mined by the decisions of the supreme court, and sometimes even these are overruled. The index is made as full as convenience may require. Great effort has been made to make it easy to find any and all statutes. Some familiarity with the statutes and the ar- rangement of the subject-matters will make it easy to find M144253 4 Preface. the law on any subject by turning to the body of the statutes in the book, where the subject index Hue of each section and subsection will conveniently indicate what is sought to be found. ROBERT T. SHANNON. Nashville, Tenn., October 25. 1907. COMPTROLLER'S STATEMENT. The most important laws of the State are those pertaining to the collection and disbursement of money. These laws are nimierous, and are scattered through more than fifty years of legislation and judicial construction; they are administered by more officials than are all other laws combined ; yet until now they have never been gathered into convenient form for ready reference — a form affording easy opportunity for intel- ligent interpretation ; and never until now has there been made a careful and consecutive attempt to prepare a complete in- dex to all the financial laws of the State and a reference to the, many judicial decisions concerning them. Thinking that such a compilation as this would be of great assistance in lessening the labors and making uniform the application of the laws by the various officials who have to do with the public revenue, and, therefore, of much value tO' the State as well, I have had this volume prepared. As evidence that the work has been done ably, thoroughly, and well, it is only necessary to say that it has been done under the personal supervision of R. T. Shannon, Esq., of the Nashville bar — Tennessee's most gifted law editor. I trust that it may meet with the approval of and be of ben- efit to the great number of officials — my coworkers — who are so earnestly endeavoring to do their duty both to the State and county and to the individual in the administration of the financial laws of the Commonwealth. FRANK DIBRELL, State Comptroller. Nashville, Tenn., October 28, 1907. CONTENTS. Revenue law and rate of taxation 7 Collateral inheritance and succession tax or duty 92 General assessment law 113 Collection of taxes in fractional parts of new counties taken from old counties owing railroad debts prior to separation 260 Assessment of railroad, telegraph, and telephone proper- ties for taxes, and collection thereof 265 Assessment of railway cars of nonresidents used within this State for taxes, and collection thereof 280 Assessment of interurban railroad and street railroad properties for taxes, and collection thereof 283 Collection of taxes that are a lien on land sold under de- cree of court 290 Notice to tax collectors in judicial sales •. 292 Fees and taxes to be collected by secretary of State, . . 293 Taxation of foreign corporations for privilege of coming into this State to do business 297 Criminal costs and compensation of certain officers 298 Index 355 TAX UAWS OP TErsirNESSEE. REVENUE LAW AND RATE OF TAXATION. (1907, ch. 541— effective April 15, 1907.) Repeal of revenue statutes by implication. — The latest general rev- enue statute repeals, by implication, all earlier ones, even as to mat- ters embraced in former statutes and merely omitted from the last one. Zickler v. Bank, 20 Pickle, 277, 283-288. GENERAL RATE OF TAXATION. Section 1. State tax. — The taxes on every $100 worth of property shall be 50 cents for the year 1907 and for every sub- sequent year thereafter, 35 cents of which shall be for State purposes and 15 cents for school purposes. There shall be levied and collected a collateral inheritance tax as provided for in chapter 174 of the Acts of 1893 and acts amendatory thereof. As to the inheritance tax, see post, p. 92. Sec. 2. County and municipal taxes. — The several county courts of this State are hereby authorized and empowered to levy an annual county tax on every $100 worth of taxable prop- erty not exceeding 30 cents upon the $100 worth of property, and exclusive of the tax for public roads and pikes and schools and interest on county debts and other special purposes; and each county and municipality in this State is hereby authorized and empowered to levy a privilege tax upon merchants and such other vocations, occupations, or businesses as are named in this act and declared to be privileges, not exceeding in amount that levied by the State for State purposes. l^ENNESSEE TaX DIGEST. As to when and how county levies shall be made, and the tax col- lected, see Code, sections 649-652, and notes. 1. Delegation of taxing power to counties and cities. — Delegation of taxing powers to counties to be exercised in the mode prescribed by statute. Railroad v. Davidson Co., 1 Sneed, 637, 677; Wallace v. Tip- ton Co., 3 Shannon's Cases, 552. Power of taxation can be delegated to counties for county purposes only. Shelby Co. v. Six Judges, 3 Shannon's Cases, 508; Judges' Sal- ary Cases, 2 Cates, 380-387. Power of taxation vested in the legislature cannot, under the con- stitution of 1796, be delegated to the counties whose justices are not appointed by the taxpayers, who would thus suffer taxation without representation. Marr v. Enloe, 1 Yer., 452; Hope v. Deaderick, 8 Hum., 8, 9; Keesee v. Civil District Board of Education, 6 Cold., 130, 131 (the constitution of 1870, art. 2, sec. 29, authorizes the legislature to delegate the power of taxation to the counties and incorporated towns, but this excludes the authorit}^ to delegate the power to any other agency, as civil districts for school purposes) ; Keesee v. Civil District Board of Education, 6 Cold., 133, 134 (both citations being in the dissenting opinion); Pope v. Phifer, 3 Heis., 699 (no taxation with- out representation, and taxes cannot be , imposed by commissioners appointed, under statute, by the governor instead of the justice elected by the people); Waterhouse v. Board, 8 Heis., 859; Taylor v. Chandler, 9 Heis., 372; Waterhouse v. Board, 9 Bax., 400; Luehrman v. District, 2 Lea, 443, 479, 483, 486 (the last three citations are in the dissenting opinion); Lauderdale Co. v. Fargason, 7 Lea, 165; Lynn v. Polk, 8 Lea, 189; Ballentine v. Pulaski, 15 Lea, 639; Williams v. Taxing Dis- trict, 16 Lea, 536; Levee District v. Dawson, 13 Pickle, 159, 175; Tip- ton Co. V. Locomotive and Machine Co., 13 Otto, 103 U. S., 527, 26 L. ed., 342. See const., art. 2, sees. 3, 28, 29, and notes. Delegation of the taxing power to counties and incorporated towns. Taylor v. Chandler, 9 Heis., 349, 372; Levee District v. Dawson, 13 Pickle, 176. Legislature can delegate the taxing power to counties and incorpo- rated towns only, and not to civil districts, though they be denominated incorporated towns. Lipscomb v. Dean, 1 Lea, 546, 552-554; Luehr- man V. Taxing District, 2 Lea, 444; Ballentine v. Pulaski, 15 Lea, 639; Redistricting Cases, 3 Cates, 263. See const., art. 2, sec. 29; note un- der sec. 99 of the Code. 2. What is county purpose determined by courts. — Courts deter- mine what is a county purpose of taxation; the legislature is not the exclusive judge thereof. Shelby Co. v. Six Judges, 3 Shannon's Cases, 508; Judges' Salary Cases, 2 Cates, 380-387. 3. Power of taxation is not judicial.— The power of taxation for county purposes delegated to the county court is not judicial and Revenue Ixa.w and Rate of Taxation. 9 might have been confided to any other agents. Cannon Co. v. Hood- enpyle, 7 Hum., 145, 146; Grant v. Lindsay, 11 Heis., 666; Railroad v. Wilson Co., 5 Pickle, 604; Redistricting Cases, 3 Cates, 256. 4. Power of taxation is legislative. — County courts, in exercising the delegated power of taxation for county purposes, act as the legis- lature itself. Cannon Co. v. Hoodenpyle, 7 Hum., 145, 146; Railroad V. Wilson Co., 5 Pickle, 604 (but they cannot exempt property from taxation). 5. County assessment is for what. — Assessment of a county tax is a municipal provision made for the regulation of the fiscal affairs of the county. Obion Co. v.' Marr, 8 Hum., 634, 638; Grant v. Lindsay, 11 Heis., 666; Bouldin v. Grundy Co., 3 Bax., 271; Keely v. Haywood Co., 1 Shannon's Cases, 612; Railroad v. Wilson Co., 5 Pickle, 634; Redistricting Cases, 3 Cates, 256. 6. Bridge tax is not included in maximum rate for county pur- poses. — The bridge tax authorized by section 1734 of Shannon's Code to be levied by the county court is not included in computing the max- imum rate at which taxes may be levied for county purposes. Rail- road V. Marion Co., 7 Lea, 663-665. 7. Special act not repealed by general act, when. — This statute al- lows count}^ taxation for special purposes above the general limit, but a general revenue act, fixing the limit of the taxing power of coun- ties, does repeal or modify, by implication, an earlier special act au- thorizing a particular county to levy a tax to build a particular bridge. Burnett v. Maloney, 13 Pickle, 697, 703-706; Zickler v. Bank, 20 Pickle, 295. ( 8. Special tax; surplus; misappropriation enjoined, but collection not enjoined, because illegal for excessiveness, when. — The authority to divert the surplus of a special tax and apply it to the extinguish- ment of any just debt against the county does not justify the inten- tional levy and collection of a larger special tax than is necessary, but simply authorizes the application to general purposes of such acci- dental and unavoidable surplus of the special tax levied in good faith as may remain at the end of each year, and the misappropriation of ihe special county fund may be prevented by injunction under a bill filed and prosecuted by taxpayers; but an injunction against the col- lection of such tax, though illegal as excessive, will be denied where they have delayed to bring suit for a whole year and until the greater part of the tax had been collected. Kennedy v. Montgomery Co., 14 Pickle, 165; Patton v. Chattanooga, 24 Pickle, 223. 9. County cannot discriminate in privilege taxes. — The legislature had authority under the constitution (art. 2, sees. 28 and 29), and it lo Tennessee Tax Digest. was competent for it, to impose upon the county courts the restric- tions contained in section 652 of the Code, in regard to the imposition of taxes; and the county court must, under this statute, observe the prin- ciple of equalit}^ and uniformity, and the slightest discrimination will be oppressive and unlawful. Where the percentage of a privilege tax upon retail liquor selling imposed by the county court is not equal and uniform with the other county taxes, as compared with the State tax, such liquor privilege tax is unlawful to the amount of the discrimina- tion and excess, and such excess paid under protest may be recovered. Stern v. Lewis, 2 Shannon's Cases, 51. Sec. 2a. Privilege tax is not exemption from ad valorem tax ; special privilege acts not repealed; exemption of soldiers. — The imposition of a privilege tax under this act shall not be construed as a release or exemption from an ad valorem tax, unless otherwise expressly provided ; nor shall this act be con- strued as repealing any special act heretofore passed impos- ing a privilege tax ; provided, that any indigent ex-Confeder- ate or ex-Federal soldier doing a privilege business, except the business of a liquor dealer, with a capital not exceeding $250, shall be exempt from paying the privilege tax herein provided for. Sec. 3. Merchant's ad valorem and privilege taxes. — All merchants shall pay an ad valorem tax upon the average capi- tal invested by them in their business of 50 cents on the $100, 35 cents of which shall be for State purposes and 15 cents for school purposes; and a privilege tax of 15 cents on each $100 worth of taxable property, 7^^ cents of which shall be for school purposes and 7^^ cents for State purposes ; provided, that such privilege tax, without regard to the length of time they do business, shall in no case be less than $5, which $5 is to be paid when the license is taken out ; and in case of those whose privilege tax amounts to more than $5, the $5 paid shall be a credit when the balance of the tax is paid ; provided, fur- ther, that said $5 shall be equally divided between the State and counties, 1. License not binding on State; rate increased. — A merchant's license is not a contract binding on the State, and the legislature may Eevenue Law and Eate of Taxation. ii change the rate of taxation pending the period for which the license is issued, and the merchant must pay taxes according to the rate fixed by law for any given time. Kelly v. Dwyer, 7 Lea, 180, 193. 2. Merchants classified for privilege taxation. — The legislature may classify merchants for purposes of taxation, and tax each class at dis- cretion; and if a merchant of one class, paying a tax as such, add to the occupation another though kindred business, which is additionally taxed, he must pay the additional tax. Kelly v. Dwyer, 7 Lea, 180, 190; Vosse v. Memphis, 9 Lea, 294; Eastman v. Jackson, 10 Lea, 162, 164; Robbins v. Taxing District, 13 Lea, 304, 310. 3. Merchants and peddlers taxed without declaring their business privileges. — " Merchants " and " peddlers " are distinct objects of tax- ation, and may be taxed as such, and not as '' privileges " — that is, without first declaring their business or occupation to be '* privileges." Jenkins v. Ewin, 8 Heis., 456, 473, 474; Kelly v. Dwyer, 7 Lea, 180, 182, 189. 4. Merchant tailot's tax. — A merchant tailor who takes measures, sells by sample, and sends the clothing here from another State, is liable to the privilege tax on merchants. Singleton v. Fritsch, 4 Lea, 93; Murray v. State, 11 Lea, 221. A merchant tailor who keeps on hand the material out of which he makes clothing upon orders is required to take out license as a mer- chant. Murray v. State, 11 Lea, 218; Robbins v. Taxing District, 13 Lea, 304, 305, 308. 5. Privilege to be paid, though property exempt. — A merchant deal- ing in articles exempt from taxation may be required to pay the privi- lege tax on merchants, for this is not a tax upon the article, but upon the occupation or business. State v. Crawford, 2 Head, 461-463; Jenk- ins V. Ewin, 8 Heis., 456, 483, et seq.; Taylor v. Vincent,, 12 Lea, 283; Kurth V. State, 2 Pickle, 134, 136. 6. Exemption of manufactures from taxation does not exempt a dealer from the privilege tax. — Exemption of manufactures of produce of this State from taxation does not operate to exempt a dealer from the privilege tax imposed. State v. Crawford, 2 Head, 461; Jenkins V. Ewin, 8 Heis., 483; Taylor v. Vincent, 12 Lea, 283; Kurth v. State, 2 Pickle, 136 (articles exempt, but privilege may be laid for selling, even upon the manufacturer). See const., art. 2, sec. 30, and notes. 7. Privilege tax is upon the business rather than upon the goods. — The privilege tax is upon the privilege itself rather than upon the goods, although the amount of such tax is graduated according to the va:lue of the stock or capital in trade. Mayes v. Erwin, 8 Hum., 290, 12 Tennessee Tax Digest. 293; State v. Crawford, 2 Head, 461; Jenkins v. Ewin, 8 Heis., 484, 485; Kelly V. Dwyer, 7 Lea, 184; Steel & Wire Co. v. Speed, 2 Cates, 547. 8. Merchant's capital investpd in goods sold to nonresidents and sent beyond the State is taxed ad valorem, and not for privilege. — The merchant's tax, or the privilege tax upon merchants, shall not be levied upon that part of their capital used in buying goods to sell to nonresidents, but the property tax upon merchants shall be uniform with the general property tax. That portion of the merchant's cap- ital used in buying merchandise sold to nonresidents and sent beyond the State is subject to the property or ad valorem tax, but not to the privilege tax. Friedman v. Mathes, 8 Heis., 488; Merchants v. Mem- phis, 9 Bax., 76, 91, 92; Kelly v. Dwyer, 7 Lea, 180, 191. See const, art. 2, sec. 28, making this exemption, though it is not contained in the statute. 9. How exemption is ascertained and tax computed when portion of merchant's capital is invested in goods sold to nonresidents and sent beyond the State. — The exemption is ascertained by deducting from the whole taxable capital that portion or percentage thereof used in the purchase of merchandise sold to nonresidents and sent beyond the State, and the privilege tax is ascertained by computing the privi- lege tax on the remaining portion or percentage of the whole taxable capital. Friedman v. Mathes, 8 Heis., 488, 490; Kelly v. Dwyer, 7 Lea, 191, 192. ' 10. Constitution exempting merchant's capital invested in goods sold to nonresidents and sent beyond the State is self-executing. — The clause in the constitution prohibiting the imposition of a privilege tax upon that portion of a merchant's capital used in the purchase of merchandise sold to merchants and sent beyond the State is self- executing, and must be obeyed with or without appropriate legislation on the subject. Friedman v. Mathes, 8 Heis., 488, 498, 499; Kelly v. Dwyer, 7 Lea, 191. See const., art. 2, sec. 28. 11. Exemption of taxes above the ad valorem on goods sold to non- residents and sent beyond the State does not exempt saloons from privilege. — While the legislature cannot impose a " merchant's tax," usually denominated a " privilege tax " or " license tax," higher than the ad valorem tax on property on that portion of a merchant's capital used in the purchase of merchandise sold by him to nonresidents and sent beyond the State (const., art. 2, sec. 28), yet, in addition to the " merchant's tax," a liquor dealer may be required to pay a specific tax as a privilege for carrying on his business. This is not a tax on his capital, and is not subject to the said clause of the constitution; and, therefore, no deduction will be made on the saloonist's specific^ privilege tax because of sales of liquor to nonresidents and sent be- yond the State. Kelly v. Dwyer, 7 Lea, 180. Eevenup: Law and Eate of Taxation. 13 12. Merchant's capital not exempt from ad valoreni tax on merchan- dise sold and sent beyond the State. — The ad valorem tax imposed upon merchants, not exceeding the ad valorem tax rate upon prop- erty, must be paid by merchants upon that part of their capital used in the purchase of merchandise sold by them to nonresidents and sent beyond the limits of the State. Opinion of Attorney-General Gates. See note 8, above. PRIVILEGE TAXES PAYABLE TO COUNTY COURT CLERK. 1. Separate list of privileges not necessary, nor need all be included in such a list. — Occupations and business transactions mentioned in this section, unquestionably with the expectation that they are to be taxed, with language sufficient to enable that intent to be carried into effect, will be taxed as privileges, though they are not mentioned in a list of privileges in the assessment law, and though the assessment law undertakes to designate and declare the list of privileges to be taxed, and omits some that are given in the revenue law. Dun v. Gullen, 13 Lea, 202; Palmer v. State, 4 Pickle, 560, 561. 2. " Privilege " defined. — A privilege is the exercise of an occupation or business which requires a license from some properly constituted authority, designated by general law, and not open to all or any one without such license. Mabry v. Tarver, 1 Hum., 94, 98; Gate v. State, 3 Sneed, 121, 122; French v. Baker, 4 Sneed, 195, 196; Robertson v. Heneger, 5 Sneed, 258; Columbia v. Guest, 3 Head, 414; State v. Schlier, 3 Heis., 283; Harrison v. Willis, 7 Heis., 44; Jenkins v. Ewin, 8 Heis., 475, 476; Wiltse v. State, 8 Heis., 547; Lawyers' Tax Gases, 8 Heis., 656 (in the dissenting opinion); Phillips v. Lewis, 3 Shan- non's Cases, 230, 242, 243; Gar Go. v. Gaines, 3 Tenn. Chy., 591; Clarke V. Montague, 3 Lea, 277; Dun v. Gullen, 13 Lea, 204; Kurth v. State, 2 Pickle, 136; Railroad v. Harris, 15 Pickle, 702, 703; Blaufield v. State, 19 Pickle, 597. A privilege is whatever business, pursuit, occupation, or vocation, affecting the public, the legislature chooses to declare and tax as such. Mabry v. Tarver, 1 Hum., 94, 98; Columbia v. Guest, 3 Head, 414; Jenkins v. Ewin, 8 Heis., 475, 477; Kurth v. State, 2 Pickle, 136; Turnpike Cases, 8 Pickle, 372; Burke v. Memphis, 10 Pickle, 694, 695; Railroad v. Harris, 15 Pickle, 702; Trentham v. Moore, 3 Gates, 352; Allen v. Pullman's Palace Gar Co., 191 U. S., 178, 48 L. ed., 138. 3. " Privilege " as previously defined was used and adopted by the constitution of 1870. — The word *' privileges " used in the constitution of 1870 must be taken to be used in the established sense of its definition as understood and fixed by previous legislative interpretation and judi- cial construction. State v. Schlier, 3 Heis., 281, 283; Jenkins v. Ewin, 8 Heis., 456, 475, 476, 485, 486; Wiltse v. State, 8 Heis., 547; Car Co. v. Gaines, 3 Tenn. Chy., 591; Clarke v, Montague, 3 Lea, 277. 14 Tennessee Tax Digest. 4. Nothing except what is included in the definition of a privilege can be so declared and taxed as such. — Anything not included in the definition of a privilege cannot be declared a privilege and taxed as such by the legislature. The mere ownership of property cannot be taxed as a privilege. The power to impose a privilege tax upon the mere ownership of property necessarily involves the power to destroy the equality and uniformity of taxation of property according to its value. Phillips v. Lewis, 3 Shannon's Cases, 242-245; Kurth v. State, 2 Pickle, 136; Trentham v. Moore, 3 Gates, 352, 353. 5. Prohibition without license not necessary. — A positive prohibi- tion, by law, of the exercise of an occupation or business, or the power to prohibit, is not essential to create it a privilege; the requirement of a license is itself a prohibition to act without it. State v. Schlier, 3 Heis., 283, 284; Jenkins v. Ewin, 8 Heis., 474, 476, 477; Phillips v. Lewis, 3 Shannon's Cases, 230, 243; Dun v. CuUen, 13 Lea, 204; Burke V. Memphis, 10 Pickle, 694, 695. 6. License need not be actually issued. — Actually issued license or tax receipt is only evidence of the grant of the privilege, and is not an essential feature of it. Phillips v. Lewis, 3 Shannon's Cases, 230, 243. 7. Power to create privileges does not depend on " police power." — The power of the legislature to create privileges for purposes of tax- ation does not depend upon its police power to prohibit the business or occupation taxed. Jenkins v. Ewin, 8 Heis., 456, 475, 476. 8. License withdrawn by legislature. — The grant of a privilege license may be withdrawn at the discretion of the legislature, so as to prohibit the sale of pistols other than army or navy pistols purchased under a previous license expiring before the law goes into effect. State v. Burgoyne, 7 Lea, 173. 9. Increased rate after license issued must be paid. — The rate of taxation on a privilege may be changed by the legislature pending the period for which a license is issued, and the tax must be paid accord- ing to the rate fixed by law for any given time. The license is not a contract binding on the State. Kelly v. Dwyer, 7 Lea, 180, 187, 193. 10. License includes all essentials of the business. — A license to carry on a business includes all necessary or essential parts of that business (Bell v. Watson, 3 Lea, 328, 331; Taxing District v. Emer- son, 4 Lea, 312, 314; Taxing District v. Brackett, 4 Lea, 323, 325; Kelly V. Dwyer, 7 Lea, 180, 188; Memphis v. Express Co., 18 Pickle, 343), but not such as might be useful, convenient, or profitable, and not essential. Woolman v. State, 2 Swan, 353, 357; Bell v. Watson, 3 Lea, 328, 332; Kelly v. Dwyer, 7 Lea, 180, 188; Railroad v. State, 9 Lea, 218; Knoxville v. Sanford, 13 Lea, 545. Revenue Law and Rate of Taxation. 15 11. Merchants and privileges classified, and each class of business required to pay privileges. — The legislature may classify merchants for purposes of taxation, and tax each class; and if a merchant of one class, paying a tax as such, add to the occupation another though kin- dred business, which is additionally taxed, he must pay the additional tax. This rule applies to all privileges, as well as to merchants. State V. Schlier, 3 Heis., 281, 286; Kelly v. Dwyer, 7 Lea, 180, 190; Fulgum V. Nashville, 8 Lea, 635, 639, 640; Vosse v. Memphis, 9 Lea, 294; East- man V. Jackson, 10 Lea, 162, 164; Robbins v. Taxing District, 13 Lea, 304, 307, 310; DeMoville v. Davidson County, 3 Pickle, 218; Stratton V. Morris, 5 Pickle, 525; State v. Alston, 10 Pickle, 682, 683. 12. Graduation and classification of privileges is valid. — Privilege taxes may be graduated or classified according to the population of the town. State v. Schlier, 3 Heis., 281, 285, 286; Fulgum v. Nashville, 8 Lea, 639, 640; Vosse v. Memphis, 9 Lea, 298; Robbins v. Taxing Dis- trict, 13 Lea, 304, 307; Stratton v. Morris, 5 Pickle, 524; State v. Alston, 10 Pickle, 683. 13. The same business not to be twice taxed, unless expressly so provided. — The safe and sound rule of construction of revenue laws is to hold, in the absence of express words plainly disclosing a different intent, that they were not intended to subject the same property to be twice charged for the same tax, nor the same business to be twice taxed for the exercise of the same privilege. Bell v. Watson, 3 Lea, 328, 331; Druggist Cases, 1 Pickle, 449, 456. 14. Privilege sued for as a debt. — A privilege tax may be sued for as a debt in any court having jurisdiction thereof. State v. Hirsch, 16 Lea, 40, 43-45; State v. Bank, 16 Lea, 111, 117; Druggist Cases, 449, 464. • i 15. Penalties for exercising privilege without license, collected by distress warrant.—Penalties imposed by law upon persons exercising any privilege, without obtaining license, cannot be enforced in equity, but only by strict pursuance of the statutory remedy by distress war- rant. Druggist Cases, 1 Pickle, 449, 464. 16. Repeal of statute does not affect accrued liability. — The repeal of a statute levying a privilege tax will not affect the liability of a person against whom the tax had accrued. State v. Bank, 16 Lea, 111, 117, 118; Wallace v. Goodlett, 20 Pickle, 682. See Code, sec. 61. 17. Privilege in each county. — A person exercising a privilege in different counties is liable for the tax in each county (Dun v. Cullen, 13 Lea, 202> 205, 206), unless it is otherwise provided by the statute. — Ed. 1 6 Tennessee Tax Digest. 18. Municipal corporation cannot create a privilege. — The legisla- ture alone has power to create privileges and forbid their exercise without a license; and unless this has been done by the legislature, a municipal corporation cannot create a privilege and tax it as such. Columbia v. Guest, 3 Head, 413, 414; Nashville v. Althrop, 5 Cold., 554, 558; Nashville v. Thomas, 5 Cold., 600, 602; McLaughlin v. Chadwell, 7 Heis., 404; Memphis v. Battaile, 8 Heis., 535 (city may be empow- ered by statute or its charter to tax privileges not taxed by the State); Memphis v. Insurance Co., 6 Bax., 529 (city cannot levy a tax where the State has lawfully exempted from taxation) ; Vosse v. Memphis, 9 Lea, 297, 298; Robbins v. Taxing District, 13 Lea, 306; Memphis v. Bank, 7 Pickle, 557 (no tax where there is a lawful exemption) ; Mem- phis V. Insurance Co., 7 Pickle, 561 (same as last) ; Memphis v. Bank, 7 Pickle, 578 (same as last). 19. Municipal corporations cannot discriminate in classes. — A mu- nicipal corporation cannot discriminate between persons exercising the same privilege by imposing a tax upon one class at a higher rate or in a different mode or upon other principles than are applied to the exercise of the same privilege by others of the same class. Nashville V. Althrop, 5 Cold., 554, 558, 559; Fulgum v. Nashville, 8 Lea, 640; Vosse V. Memphis, 9 Lea, 297, 298; Robbins v. Taxing District, 13 Lea, 306, 307. 20. Discrimination against nonresidents renders city ordinance or State statute void.— City ordinance or State statute discriminating in favor of residents and against nonresidents engaged in mercantile business or other taxed privileges in the city or State is unconstitu- tional and void. Nashville v. Althrop, 5 Cold.,' 554, 559; Fulgum v. Nashville, 8 Lea, 640; Vosse v. Memphis, 9 Lea, 298; Robbins v. Tax- ing District, 13 Lea, 306, 307. 21. But may levy different and varying rate on various privileges, unless restricted or oppressive. — In imposing the privilege tax, a mu- nicipal corporation may proceed upon a different principle or in a different mode from that adopted or established by the legislature in respect to State privilege taxation, and may levy a greater privilege tax than the State (Vosse v. Memphis, 9 Lea, 297), unless restricted by the legislature in the charter of incorporation or by some general law of the State (Rutledge v. Brown, 14 Lea, 124, 127); provided, the inequality be not such as to make it oppressive on a particular class or business. Columbia v. Beasly, 1 Hum., 232, 240, 241; Adams v. Somerville, 2 Head, 363, 366, 367; Nashville v. Althrop, 5 Cold., 554, 558; Lawyers' Tax Cases, 8 Heis., 655, 656, 660; Stern v. Lewis, 2 Shannon's Cases, 53,. 54; Vosse v. Memphis, 9 Lea, 297; Knoxville v. Bird, 12 Lea, 126; Nashville v. Linck, 12 Lea, 511, 512; Rutledge v. Brown, 14 Lea, 127. 1 Eeveistue Law and Bate of Taxation. 17 22. Oppressiveness discussed. — The rule as to a city ordinance be- ing invalid and void on account of its being oppressive, when other- wise authorized, questioned and discussed, and enforced. Columbia V. Beasly, 1 Hum., 232, 241; Adams v. Somerville, 2 Head, 367; Smith V. Knoxville, 3 Head, 245, 248; Nashville v. Althrop, 5 Cold., 558; Maxwell v. Jonesboro, 11 Heis., 258, 259; Ward v. Greeneville, 8 Bax., 228; Grills v. Jonesboro, 8 Bax., 247, 248; Long v. Taxing District, 7 Lea, 137; Knoxville v. Bird, 12 Lea, 126; Nashville v. Linck, 12 Lea, 511, 512; Rutledge v. Brown. 14 Lea, 125; Newbern v. McCann, 21 Pickle, 164; Marshall v. Nashville, 1 Gates, 511, 512. 23. Charter contract of exemption before constitution of 1870 is binding. — Charter contract as to taxes of a corporation made by the legislature before the constitution of 1870 is valid and inviolable, bind- ing not only the State, but also the counties and cities, and cannot be impaired by statute or constitutional amendment. Bank v. State, 9 Yer., 490; Hazen v. Bank, 1 Sneed, 119; Girdner v. Stephens, 1 Heis., 284; Lawyers' Tax Cases, 8 Heis., 634; Lewis v. Woodfolk, 2 Bax., 47; Memphis v. Insurance Co., 6 Bax., 529; Memphis v. Ensley, 6 Bax., 555; Turnpike Co. v. Davidson Co., 3 Tenn. Chy., 405: Memphis v. Gaines, 3 Tenn. Chy., 612; Insurance Co. v. Taxing District, 4 Lea, 645, 646; Memphis v. Insurance Co., 3 Shannon's Cases, 464; State v. Butler, 13 Lea, 408; State, for use, v. Butler, 2 Pickle, 620, 621; Mem- phis V. Bank, 7 Pickle, 549, 557; Memphis v. Insurance Co., 7 Pickle, 561; Memphis v. Bank, 7 Pickle, 578; State v. Bank, 11 Pickle, 226; Railroad v. Harris, 15 Pickle, 692; Coal Co. v. McDowell, 16 Pickle, 572. See State const., art. 1, sec. 20; art. 2, sec. 28, and note 5; art. 11, sec. 8; U. S, const., art. 1, sec. 10; Farrington v. Tennessee, 5 Otto, 95 U. S., 679, 24 L. ed., 558; Bank v. Billings, 4 Pet., 29 U. S., 514, 7 L. ed., 939, and note; Tucker v. Ferguson, 22 Wall., 89 U. S., 527, 22 L. ed., 805, and note; Powers v. Railroad, 201 U. S., 543, 50 L. ed., 860; Adams v. Railroad, 60 L. R. A., 33, and note. 24. Contracts in violation of privilege laws are void. — A statute de- claring that certain " occupations and business transactions . . . shall be deemed privileges, and be taxed, and not pursued or done without license." by its clear and unambiguous terms, is an express prohibition, forbidding all persons to pursue or exercise any of said privileges "without license;" and if they do so, their acts are in vio- lation of law, and all contracts for their benefit are illegal and void, and they cannot recover compensation for services rendered by con- tract while so unlicensed to do the business. Stevenson v. Ewing, 3 Pickle, 46; Manufacturing Co. v. Draper, 19 Pickle, 264; Watterson V. Nashville, 22 Pickle, 414. But see Pile v. Carpenter, 99 S. W., 360 (which will likely be published in 10 Gates), construing a statute sim- ilar to Acts 1907, ch. 541, sees. 4, 14, 16, and 18, post, pp. 18, 83, 89, and 90, and Acts 1907, ch. 602, sec. 27, post, p. 159, and holding that real es- ^8 Tennessee Tax Digest. tate dealers and agents without license cannot enforce contracts made in the conduct of their business. The effect of this decision is that all parties exercising any taxable privilege without license have no status in the courts for the enforcement of their contracts or rights growing out of transactions in the exercise of the taxable privilege, although the statute does not provide that the vocation, occupation, or business shall not be pursued or done without license, as was the case in Ste- venson V. Ewing, 3 Pickle, 46. 25. No presumption of violation. — The courts will not presume that any one is exercising a privilege without the license, and that fact must be proved. Mills v. Mills, 3 Head, 712. See notes 1 and 2 under sec. 2561 of the Code. 26. Criminal law not repealed by making its violation a privilege. — A criminal law is not repealed by implication by a statute declaring the violation thereof a privilege and taxing it as such. Palmer v. State, 4 Pickle, 553; Brown v. State, 4 Pickle, 566. 27. Unlawful business is not legalized by levy of privilege tax thereon. — Taxation as a privilege does not legalize an unlawful busi- ness, and the receipt for the taxes is not a license. Palmer v. State, 4 Pickle, 553, 556-565; Atkins v. State, 11 Pickle, 476; Blaufield v. State, 19 Pickle, 598; Guarantee Co. v. Savings Bank & Trust Co., 183 U. S., 417, 46 L. ed., 261. The imposition of a privilege tax upon an unlawful business, as the sale of cigarettes, does not operate to legalize such unlawful business. Blaufield v. State, 19 Pickle, 593. See Brown v. State, 4 Pickle, 566. 28. Unauthorized license is no protection. — Unauthorized license is the same as no license at all, and is no protection against violation of the law. Brown v. State, 4 Pickle, 566; Atkins v. State, 11 Pickle, 476. See Palmer v. State, 4 Pickle, 556-565, and especially 565. Sec. 4. Privilege taxes. — Each vocation, occupation, and business hereinafter named in this section is hereby declared to be a privilege, and the rate of taxation on such privilege shall be as hereinafter fixed, which privilege tax shall be paid to the county court clerk as provided by law for the collection of revenue. Revenue Law and Rate of Taxation. 19 ABSTRACT COMPANIES AND PERSONS PURSUING THE BUSINESS OF FURNISHING AB- STRACTS OF TITLE. In cities, taxing districts, or towns of 60,000 inhabit- ants or over, each, per annum $ 75 00 In cities, taxing districts, or towns of from [of] 20,- 000 to [and less than] 60,000 inhabitants, each, per annum 50 00 In cities, taxing districts, or towns of from [of] 15,- 000 to [and less than] 20,000 inhabitants, each, per annum 25 00 In cities, taxing districts, or towns of less than 15,000 inhabitants, each, per annum 10 00 Lawyers not taxed for furnishing abstracts, when; but their con- nection with firms and corporations does not exempt such firms and corporations, when. — Lawyers who, in the exercise of their profession and as an incident to their practice, make and furnish abstracts of title for their clients, but do not pursue the furnishing of abstracts as a business, are not liable for the privilege tax on abstract companies and persons pursuing the business of furnishing abstracts of title. But a firm or partnership, not a law firm composed entirely of lawyers, en- gaged in furnishing abstracts of title, is liable for such privilege tax. A firm or partnership will not be relieved of the tax because one mem- ber thereof is a lawyer, nor will a corporation be so relieved of the tax because a lawyer is connected with it. Ruling of Comptroller Dibrell and Opinion of Attorney-General Gates. ADVERTISING COMPANIES. All persons, companies, or corporations owning, con- trolling, or conducting the business of advertising in street cars in counties of 60,000 inhabitants or over, each, per annum $ 100 00 In counties of less than 60,000 inhabitants, each, per annum 25 00 All persons, companies, or corporations owning, con- trolling, or conducting the business of advertising in dummy cars or railroad cars in Counties of 50,000 • inh^abitants or over, each, per annum. 50 00 In counties of less than 50,000 inhabitants, each, per annum ; ^ -^5 00 20 Tennessee Tax Digest. All persons, compani' s, or corporations owning, con- trolling-, or conducting the business of advertising in railroad depots in each county in which business is done, each, per annum 10 00 AMUSEMENTS. (See Circuses and Menageries.) ARTISTS AND PHOTOGRAPHERS. In cities, towns, or taxing districts of over 20,000 in- habitants, each, per annum $ 25 00 In cities, towns, or taxing districts of from 6,000 [in- clusive] to 20,000 [inclusive] inhabitants, each, per annum 15 00 In cities, towns, or taxing districts under 6,000 and above 2,000 inhabitants, each, per annum 7 50 In cities, towns, villages, or taxing districts under [of] 2,000 [and less] inhabitants, each, per aniium. 5 00 On each photograph, tintype, open-air gallery or tent gallery set up in or outside of any city, town, vil- lage, or taxing district in each county (whether the work shall be finished there or not), each, per an- num ■ 5 00 On each photograph gallery going from county to county in a railroad car, for the State, per annum (to be paid in one county only) 50 00 AUCTIONEERS. (Which shall include all persons selling goods, wares, merchandise, all other chattels, live stock, real es- tate, or securities at public outcry, whether they charge for the same or not; but is not to apply to judicial sales or sales by trustees.) In cities, towns, and taxing districts of 35,000 inhabit- ants or over, each, per annum $ 20 00 In cities, taxing districts, or towns of [and] from 20,000 to [less than] 35,000 inhabitants, each, per annum 15 00 In cities, taxing districts, or towns of [and] from 6,000 to [less than] 20,000 inhabitants, each, per annum 10 00 Revenue Law and Rate of Taxation. 21 In cities, towns, or taxing districts of less than 6,000 inhabitants, each, per annum 5 00 In counties outside of cities, towns, or taxing dis- tricts 5 00 Provided, that this shall not apply to persons selling effects of estates of deceased persons. 1. This statute not affected by interstate commerce laws, if no dis- crimination. — This tax is constitutional as to goods which are the products of other States, even if they are sold here by wholesale in the original and unbroken packages (Woodruff v. Parham, 8 Wall., 75 U. S., 123, 19 L. ed., 382), because when goods of other States are sent to this State to be sold, they become a part of its general prop- erty and amenable to its laws (Brown v. Houston, 114 U. S., 622, 29 L. ed., 257; Robbins v. Taxing District, 120 U. S., 497, 498, 30 L. ed., 697); provided, there is no discrimination made in favor of the products of this State (Cook v. Pennsylvania, 120 U. S., 566, 24 L. ed., 1015). 2. Auctioneer not aflfected with constructive notice, when. — An auc- tioneer is not affected with constructive notice of the existence and contents of a mortgage of chattels, and where, in the due course of his business, he receives such chattels from the mortgageor and sells them for him, on commission, and pays over to him the proceeds, without actual notice of such mortgage, he is not liable to the mort- gagee as for a conversion of the goods, although the mortgageor acted wholly without authority. Frizzell v. Rundle, 4 Pickle, 396, 397-399; Embry v. Galbreath, 2 Gates, 301 (and registration is not constructive notice to rental agents, when). AUTOMOBILES, GARAGE, OR DEALERS. In cities, towns, or taxing districts of 60,000 inhabit- ants or over, each, per annum $ 40 00 In cities, towns, or taxing districts of 20,000 to [less than] 60,000 inhabitants, each, per annum 25 00 In cities, towns, or taxing districts of less than 20,- 000 inhabitants, each, per annum 10 00 AUTOMOBILES FOR HIRE. (This shall include all automobiles for rent or hire.) For each automobile for rent or hire, per annum $ 5 00 22 Tennessee Tax Digest. BASEBALL PARKS. (For professional leagues.) In counties of over 50,000 inhabitants, when admis- sion fee is charged, each, per annum $ 25 00 In counties of less than 50,000 and over 20,000 inhab- itants, when admission fee is charged, each, per annum 15 00 In counties of less than 20,000 inhabitants, when ad- mission fee is charged, each, per annum 10 00 Traveling baseball teams, playing in open air or tents and not plaj^ng in league parks paying a privilege tax as baseball parks, each, per annum 10 00 BILLPOSTERS. All persons, companies, or corporations posting bills or other printed matter for hire in cities, towns, or taxing districts of 60,000 inhabitants or over, each, per annum $ 75 00 In cities, towns, or taxing districts of [and] from 10,- 000 to [less than] 60,000 inhabitants, each, per an- num 50 00 ' In cities, towns, taxing districts, or villages of [and] from 2,000 inhabitants to [less than] 10,000, each. per annum 10 00 ^ In cities or towns under 2,000 inhabitants 500^^^ BILLIARD TABLES. (See Games.) BICYCLES. (Dealers in.) Dealers in bicycles or bicycle supplies, or both, each person, firm, or corporation, or agent dealing in bi- cycles or bicycle supplies, or both, per annum $ 10 00 Any person, firm, corporation, or agent keeping bi- cycles for hire, each, per annum 10 00 When bicycles or bicycle supplies constitute a part of a merchant's common stock and to be sold as such in the usual course of business, the same shall Bevefue Law and Eats op Taxation. 25 be taxed as part of the merchant's stock ; provided, that the part of the common stock composed of bi- cycles or bicycle supplies, or both, does not exceed ten per cent of the entire common stock. In case the same does exceed ten per cent of the entire common stock, then the privilege tax under the first clause of this item shall be paid. BOTTLERS. Each bottler or bottling association, other than bot- tlers of natural mineral waters, each, per annum, in counties of 50,000 inhabitants or over $ 75 00 In counties of over 35,000 and under 50,000 inhabit- ants, each, per annum 50 00 In counties of over 25,000 and less than 35,000 inhab- itants, each, per annum 25 00 In counties of less than 25,000 inhabitants, each, per annum 10 00 Provided, that brewers or brewers' agents paying tax as such shall not be liable for the above tax where they bottle beer only. BREWERIES. Breweries located in this State shall pay, each, per annum $ 500 00 Said tax shall be paid in the county where the brew- ery is located. Each agent of, or person selling on commission for, breweries, or any dealer or his agent by whom beer is sold, when the same was purchased from, or on account of, breweries, shall pay, each, per annum, in cities, towns, or taxing districts of 20,000 inhabitants or over, for each brewery represented 500 00 Provided, that such agent handling or selling the beer of more than one brewery shall be liable for tax hereunder as if agent for one brewery only. In cities, towns, and taxing districts of over 7,500 in- habitants and under 20,000 150 00 In towns, cities, and taxing disticts of 7^00 inhabit- ants or under 50 00 Sec note 14, post, p. 47. 24 Teitnesseb Tax Digest. BROKERS. (Other than real estate or merchandise.) Each person, firm, or corporation, or agent engaged in buying or selling notes, stocks, bonds, or other securities, in cities, towns, or taxing districts of 60,- 000 inhabitants or over, each, per annum $ 75 00 In cities, taxing districts, or towns of from [over] 20,000 to [less than] 60,000 inhabitants, each, per annum 50 00 In cities, taxing districts, or towns of from 20,000 in- habitants and under 25 00 In villages or counties outside of cities, taxing dis- tricts, or towns, each, per annum 25 00 No person or persons, firms, associations, or corpora- tions engaged in the business of banking or insur- ance shall, directly or indirectly, transact any busi- ness or enter into or perform any negotiations as a broker without papng the privilege tax levied upon brokers, it being the intention of this act that if any person, firm, association, or corporation engaged in the business of banking or insurance shall act, di- rectly or indirectly, as a broker, the same shall be classified and held liable for the foregoing privilege tax on brokers. Dealers in stocks or bonds are hereby held to be brokers. Merchandise brokers representing nonresident principals exclusively cannot be taxed by State. — This revenue law imposes no privilege tax upon merchandise brokers, for the reason, it is supposed, that the former revenue laws, imposing such a tax, in so far as they applied to merchandise brokers whose business was exclusively confined to soliciting orders from contemplated purchasers within the State, as agents for nonresident parties, firms, or corporations, for goods to be shipped by such nonresident principals to such purchasers, is an unconstitutional invasion of the interstate commerce clause of the constitution of the United States. See Stockard v. Morgan, 185 U. S., 27, 46 L. ed., 785, reversing the decision of the supreme court of Ten- nessee in the same case as reported in 21 Pickle. 412. Revenue Law axd Bate of Taxatiox. 25 BUTCHERS OR RETAILERS OF FRESH MEAT. (This includes all offices, stalls, and stores for the sale of fresh meat or from wagon at retail.) In cities, towns, or taxing districts, or on territory within two miles of the limits of such city, town, or taxing district of 20,000 inhabitants or over, each, per annum $ 15 00 In cities, towns, or taxing districts of [and] from tO,- 000 to [less than] 20,000 inhabitants, or on terri- tory within two miles of the limits of such city, town, or taxing district, each, per annum 10 00 In cities, towns, or taxing districts of [and] from 6.- 000 to [less than] 10,000 inhabitants, or on terri- tory within two miles of the limits of such city, town, or taxing district, each, per annum 7 50 In cities, towns, or taxing districts of [and] from 3.- 000 to [less than] 6,000 inhabitants, or on territor\- within two miles of such city, town, or taxing dis- trict 5 00 In towns, cities, taxing districts, or villages of [and] from 1,000 to [less than] 3,000 inhabitants, or on territory within two miles of the limits of such cities, towns, or taxing districts, each, per annum . . 5 00 But this shall not apply to farmers butchering and selling meat of their own raising from wagons, nor to abattoir associations whose members are butch- ers already subject to butchers and retailers of the fresh-meat tax, and who kill for their own trade, and not for profit. 1. Butcher defined. — A butcher is a person who kills animals to sell their flesh. Eastman v. Jackson, 10 Lea, 163, 164. 2. Licensed merchant seUing fresh meats most pay tiiis tax. — A licensed merchant who sells fresh meat at retail in such a town or city must pay this pririlege tax, it matters not how limited the business may be. Eastman v. Jackson, 10 Lea, 162. WHOLESALE DEALERS IX FRESH MEAT, OTHER THAN BUTCHERS. (This tax shall also apply to cold storage companies.) In counties of 50,000 inhabitants or over, each, per annum $ 200 00*^ 26 Tennessee Tax Digest. In counties of less than 50,000 and [of or] over 40,- 000 inhabitants, each, per annum 100 00 ^"^ (The above shall apply to, all cold storage companies making charges for cold storage, except manufac- turers owning and operating their own plant.) In counties of less than 40,000 inhabitants, each, per annum 50 00 — ' Provided, that cold storage companies where only produce or meats killed by local butchers is stored shall pay, in counties of 75,000 inhabitants or over, each, per annum 75 00 ^ In counties of less than 75,000 and [of or] over 40,000 inhabitants, each, per annum 37 50 /^ In counties of less than 40,000 inhabitants, each, per annum 5 00 -^ CHECK ROOM. Persons, firms, or corporations conducting a check room for the deposit of packages and baggage shall pay a privilege tax for State purposes as follows : 1st. Where the charge for the keep or deposit of any article is at a rate of 10 cents or more for every twenty-four hours or fraction thereof of storage, each, per annum $ 20 00 2d. Where the charge for the keep or deposit of any article is at a rate of less than 10. cents for every , twenty-four hours or fraction thereof of storage, each, per annum 10 00 CIGAR STANDS. In cities, towns, or taxing districts of 20,000 inhabit- ants or over $ 10 00 In cities, towns, or taxing districts under 20,000 in- habitants 5 00 This shall not apply to merchants engaged in the mercantile business, paying an ad valorem mer- chant's or privilege tax as such, and who sell cigars and tobacco as an incident thereto from established business place, when the ad valorem value of their stock of cigars and tobacco does not exceed ten per cent of the value of their general stock of mer- chandise. Eevenue Law and Eate of Taxation. 27 1. " Cigar stand " defined. — A " cigar stand," in the meaning of this statute, is simply a place where cigars are sold and can be purchased by consumers in a regular business, and it matters not the ** cigar stand " may be kept in connection with other business. Cigar Co. v. Cooper, 15 Pickle, 473-475. 2. Cigar stand tax must be paid by licensed merchant or saloon keeper, except when. — A licensed merchant or saloon keeper selling cigars to consumers in connection with his regular business is liable for the privilege tax upon " cigar stands," in addition to the ad valorem and privilege tax paid by him as a merchant or saloon keeper, unless he comes within the exception here provided. See Cigar Co. v. Cooper, 15 Pickle, 472. CIRCUSES OR MENAGERIES, OR BOTH. (When admission fee is charged.) See Exhibitions, etc., post, p. 34, Wild West shows, post, p. 35. In counties of 50,000 inhabitants and over, each $ 200 00 In counties of [and] more than 40,000 and less than 50,000 inhabitants, each 150 00 In counties of [and] more than 35,000 and less than 40,000 inhabitants, each 100 00 In counties of [and] more than 30,000 and less than 35,000 inhabitants, each 75 00 In counties of [and] more than 25,000 and less than 30,000 inhabitants each 50 00 In counties of [and] more than 20,000 and less than 25,000 inhabitants, each 35 00 In counties of less than 20,000 inhabitants, each 25 00 (Side shows and other shows and concerts in connec- tion with the above taxed separately under their appropriate head, if they charge a separate or addi- tional entrance fee.) Sleight of hand, or legerdemain, each day and night, or day or night, each 20 00 Other exhibitions for profit (except circuses, menag- eries, etc.), except exhibitions for purely charitable purposes, and those given by amateur or home troupes, each day and night, or day or night, each . . 15 00 Per week 30 00 Per month 100 00 28 Tennessee Tax Digest. Traveling theatrical companies showing in halls and not paying a privilege tax as theaters, for each day and night, or day or night 5 00 Per week 25 00 Per month 100 00 On each show, exhibition, concert, or other perform- ance where a fee is charged or collected or any con- tribution received for admission, and not devoted exclusively to religious, benevolent, or educational purposes, not being herein otherwise taxed, each, y per annum 40 00 ^ On vitascope, moving pictures, or similar entertain- ments, in cities, towns, or taxing districts of 36,000 > inhabitants or over, each, per annum 60 00 /^ In cities, towns, or taxing districts of less than 36,000 inhabitants 40 00-^ On magic lanterns, each, per annum 5 00 ^ These may be declared privileges, and taxed, though exercised by nonresident. — The business of exhibiting a circus or menagerie, whether exercised by a resident or nonresident, may be declared a privilege, and taxed as such. Robertson v. Heneger, 5 Sneed, 257; Robbins v. Taxing District, 13 Lea, 304. Such tax is not a violation of the interstate corhmerce provision of the constitution of the United States, for the reason that such entertainments are not commerce and cannot be interstate commerce. — Ed. CLOCKS. (See Ranges and Clocks.) COAL OR COKE, OR COAL AND COKE. (Agents or Dealers.) This shall apply to each person, firm, agency, or cor- poration, and to each yard from which coal or coke is delivered or sold. In cities, towns, or taxing districts of 60,000 inhabit- ants or over, each, per annum $ 40 00 -^ In cities, towns, or taxing districts of [and] from 20,000 to [less than] 60,000 inhabitants, each, per annum 30 00 In cities, towns, or taxing districts of [and] from 6,- 000 to [less than] 20,000 inhabitants, each, per an- num 12 50 Revenue L^vw and Rate of Taxation. 29 In cities, towns, or taxing districts of less than 6,000 . inhabitants, each, per annum 5 00 Provided, that nothing in this section shall apply to persons mining their ov^n coal and selling same from wagons. This shall not apply to persons or companies who sell in quantities of five bushels or less, or persons who mine their own coal and sell the same in five bushel lots. COAL OIL, ILLUMINATING OIL, OR LUBRICATING OIL, OR PETROLEUM PRODUCTS. Each and every person, firm, partnership, corpora- tion, or local agent having oil depots, storage tanks, or warehouses for the purpose of selling, delivering, or distributing oil of any description, and each and every person, firm, partnership, corporation, or lo- cal agent using a railroad car or railroad depots for such purpose, shall pay a privilege tax as follows : In cities, towns, and taxing districts of 30,000 inhab- itants or over, or in territories within five miles of the limits of such city, town, or taxing district, each, per annum $ 300 00 In cities, towns, or taxing districts of [and] from 10,- 000 to [less than] 30,000 inhabitants, or in territo- ries within five miles of the limits of such city, town, or taxing district, each, per annum 200 00 ^ In cities, towns, or taxing districts of [and] from 5,- 000 to [less than] 10,000 inhabitants, or in territo- ries within five miles of the limits of such city, town, or taxing district, each, per annum 150 00 In cities, towns, or taxing districts of [and] from 2- 000 to [less than] 5,000 inhabitants, or in territories within five miles of the limits of such city, town, or taxing district, each, per annum 75 00 ^ In cities, towns, or taxing districts of less than 2,000 inhabitants, or within five miles of the limits of such city, town, or taxing district, each, per an- num 50 00 ^ Selling directly to the consumer from wagons or tanks shall pay as peddlers. This shall not apply to merchants keeping oil for sale and paying a general merchant's tax. 30 Tennessee Tax Digest. Provided, that part of the common stock composed of coal oil, lubricating oil, or petroleum products does not exceed five per cent, of the entire common stock of such merchants. This shall not exempt mer- . chants who handle oils on commission or as agents. COLLECTION AGENCIES. This tax shall be paid, whether such agency has paid the tax as required of commercial, mercantile, mu- tual benefit, or protection agencies or not. In cities, taxing districts, or towns of 20,000 inhabit- ants or over, each office, per annum . . .$ 35 00' ' In cities, taxing districts, or towns of less than 20,000 inhabitants, each office, per annum 10 00 "^ COMMERCIAL, MERCANTILE, OR MUTUAL PROTECTIVE AGENCIES. In cities, towns, or taxing districts of 20,000 inhabit- ants or over, each office, per annum $ 150 00 "^ In cities, towns, or taxing districts under 20,000 in- habitants, each office, per annum 75 00.^'^ Local collecting and protective agencies confining ^ their operations to the county where located 11 00 Taxable for each office where kept. — These agencies are taxable in each county in which an office is kept, in the same way as if carried on by separate persons or firms. Dun v. CuUen, 13 Lea, 202, 205, 206. This decision was rendered upon a statute taxing commercial agen- cies -simply without more; but this statute specifically taxes each of- fice. — Ed. CONSTRUCTION COMPANIES. Each foreign construction company, with its chief of- fice outside of this State, operating or doing busi- ness in this State, directly or by agent, or by any subletting contract, each, per annum, in each county $ 100 00 Each domestic construction company and each for- eign construction company, having its chief office in this State, doing business in this State, each, per annum, in each county 25 00 Eevenue Law and Eate of Taxation. 31 The above tax shall be paid by persons, firms, or cor- porations engaged in the business of constructing bridges, waterworks, railroads, street-paving con- struction work, or other structures of a public na- ture. COTTON SEED OIL MILLS. On each plant pressing under 1,000 tons annually. . . .$ 15 00 On each plant pressing 1,000 and under 5,000 tons annually 30 00 On each plant pressing 5,000 and under 10,000 tons annually 40 00 On each plant pressing 10,000 and under 20,000 tons annually 60 00 On each plant pressing 20,000 and under 30,000 tons annually 100 00 On each plant pressing 30,000 and under 50,000 tons annually 150 00 On each plant pressing 50,000 and under 75,000 tons annually 200 00 On each plant pressing 75,000 and under 100,000 tons annually ." 300 00 On each plant pressing 100,000 [tons] and over an- nually 350 00 They shall make oath monthly before the county court clerk as to the number of tons pressed, and any false statement with reference thereto shall be perjury, and punished accordingly. The state- ment to be made to the taxpayer shall be in writ- ing, and the oath shall likewise be in writing and signed by the party, and shall show the amount pressed each and every month, and be filed with the clerk of the county court. COTTON COMPRESSES. Shall be taxed as other property, and each compress pressing 1 bale and under 20,000 bales per annum shall pay $ 25 00 20,000 bales and under 50,000 bales, each, per annum. 50 00 50,000 bales and under 100,000 bales, each, per annum 100 00 100,000 bales or over, each, per annum 150 00 Compresses compressing round bales shall pay as other compresses. 32 Tennessee Tax Digest. COTTON BUYERS, OR FACTORS. (Cotton factors receiving and selling cotton, other than merchants that pay a privilege tax.) Each person, firm, company, or corporation in cities, towns, or taxing districts of 20,000 inhabitants or over $ 25 00 Each person, firm, company, or corporation in cities, towns, or taxing districts of [and] from 10,000 to [less than] 20,000 inhabitants 15 00 Each person, firm, company, or corporation in cities, towns, or taxing districts of [and] from 5,000 to [less than] 10,000 inhabitants 7 50 Each person, firm, company, or corporation in cities, towns, or taxing districts of less than 5,000 inhabit- ants 5 00 Privilege tax for the year, though not so specified. — This statute does not specify the time for which the privilege may be exercised for the various sums charged; but in view of the fact that no privileges are im.posed by law for a longer period than one year, and all, with very few exceptions, are imposed for the exact period of one year, with the option in most cases of taking out the license quarterly, or for three months at a time, and paying therefor one quarter of the yearly rate (see Acts 1907, ch. 602, sec. 27, subsec. 2, sec. 27i (2a), post, p. 161; and Acts 1883, ch. 29, Code sec. 1003, post, p. 161, and notes), it is not unreasonable to presume that this privilege tax is imposed for the exact period of one year, and this statute should be so construed. — Ed. DEALERS IN ORIENTAL WARES AND NOVELTIES. Each transient person, firm, association, corporation, or agent who offers for sale, or sells. Oriental rugs or carpets, bric-a-brac, pottery, or other fancy nov- elties of any kind, in each county, each, per annum. $ 100 00 This license shall be taken out for not less than one year. DEALERS IN THEATER TICKETS. Persons buying and offering for sale such tickets in cities, towns, or taxing districts of 40,000 inhabit- ants or over, each, per annum $ 25 00 In cities, towns, or taxing districts of [and] from 20,- 000 to [less than] 40,000 inhabitants, each, per an- num 10 00 Revenue Law and Katr of Taxation. 33 In cities, towns, or taxing districts of [and] from 10,- 000 to [less than I 20,000 inhabitants, each, per an- num 5 00 DISTILLERS OF BRANDY. Each distillery with a capacity of five barrels or over per day, per annum $ 50 00 Each distillery with a capacity of less than five bar- rels per day, per annum 25 00- Distillers' license shall not be issued for a less time than one year. DISTILLERS OF WHISKY. Each distillery with a capacity of over ten barrels per day, per annum $ 500 00- Each distillery with a capacity of [and] from five to [less than] ten barrels per day, per annum 300 00- Each distillery with a capacity of [and] from two to [less than] five barrels per day, per annum 150 00 Less than two barrels and more than one barrel 50 00 Less than one barrel 25 00 Distillers' license shall not be issued for less time than one year. EATING OR LUNCH HOUSES, OR STANDS OR WAGONS. Other than hotels or restaurants in cities, towns, or taxing districts of 8,000 inhabitants or over, each, per annum $ 10 00 Under 8,000 and [of or] over 5,000 inhabitants 5 00 Under 5,000 2 50 ELECTRIC LIGHT AND POWER COxMPANIES, OR ELECTRIC LIGHT OR POWER COMPANIES. This shall apply to corporations, associations, or indi- viduals selling lights, or electricity, for commercial purposes, for light or power for sale and selling same. In cities, towns, and taxing districts of 100,000 popu- lation and over, each, per annum $ 750 00 2 34 Tennessee Tax Digest. In cities, towns, and taxing districts of 60,000 to [less than] 100,000 inhabitants, per annum 750 00 In cities, towns, and taxing districts of [and] from 20,000 to [less than] 60,000 inhabitants, each, per annum 500 00 In cities, towns, and taxing districts of [and] from 7,500 to [less than] 20,000 inhabitants, each, per an- num 200 00 In cities, towns, and taxing districts of [and] from 4,000 to [less than] 7,500 inhabitants, each, per an- num 100 00 In cities, towns, and taxing districts of [and] from 3,000 to [less than] 4,000 inhabitants, each, per an- num 50 00 In cities, towns, and taxing districts of [and] from 2,000 to [less than] 3,000 inhabitants, each, per an- num 40 00 In cities, towns, and taxing districts under 2,000 in- habitants, each, per annum 25 00 ELEVATORS. (See Warehouses and Elevators.) PRESSING AND DYEING ESTABLISHMENTS. Steam or electric cleaning, pressing, or dyeing estab- lishments, in cities, taxing districts, or towns of 20,000 inhabitants or over, each, per annum $ 25 00- In cities, taxing districts, or towns of [and] from 10,000 to [less than] 20,000 inhabitants, each, per annum 12 50* In cities, taxing districts, or towns of [and] from 6,000 to [less than] 10,000 inhabitants, each, per an- num 7 50 In cities, taxing districts, or towns of less than 6,000 inhabitants, each, per annum 2 50 ^ EXHIBITIONS OF TRAINED ANIMALS AND DOG AND PONY SHOWS. On each exhibition of trained animals or dog and pony shows, not being a circus or menagerie, for each day and night, or night and day : In counties of 50,000 inhabitants or over. $ 20 00 Revenue Law and Rate of Taxation. 35 In counties from [of and over] 30,000 to [less than] 50,000 inhabitants 15 00 In counties of less than 30,000 inhabitants, each 10 00 WILD WEST SHOWS. Each day and night, or day or night : In counties of 50,000 inhabitants and over, each $ 150 00 In counties of less than 50,000 inhabitants, each 75 00 FEATHER RENOVATORS. Persons, firms, or their agents soliciting or engaged in cleaning and renovating feathers, in each county, each, per annum $ 300 00- FEES. All persons, banking associations, or brokers or their agents buying or attempting to buy fees of any offi- cer or witness accruing in any of the courts of this State shall be taxed as follows : In counties of 50,000 inhabitants or over, each, per annum $ 100 00 In counties of [and] from 20,000 to [less than] 50,000 inhabitants, each, per annum 50 00 In counties of [and] from 10,000 to [less than] 20,000 inhabitants, each, per annum 25 00 In counties of less than 20,000 [10,000] inhabitants, each, per annum 10 00 Said tax shall be paid for each and every person cm- ployed in said business, whether as principal or agent ; but said tax shall not apply to merchants or other persons paying face value for said fees. FERRIES. (Except those run by hand with oars, when landing in this State, at or within five miles of taxing dis- tricts, cities, or towns.) At or within five miles of cities, towns, or taxing dis- tricts of 10,000 inhabitants or over, each, per an- num $ 50 00 36 Tennessee Tax Digest. At or within five miles of cities, towns, or taxing dis- . tricts of [and] from 5,000 to [less than] 10,000 in- habitants, each, per annum 30 00 At or within five miles of cities, towns, or taxing dis- tricts of [and] from 3,000 to [less than] 5,000 in- habitants, each, per annum 20 00 At or within five miles of cities, towns, or taxing dis- tricts of less than 3,000 inhabitants, each, per an- num 5 00 All firms taxable under this act more than five miles from towns, cities, or taxing districts, each, per an- num 5 00 Provided, that there shall be no tax upon any ferry owned by the county wherein the same is situated. 1. Licensed or franchised ferryman cannot enjoin unlicensed ferry- man where each owns one bank. — Where the opposite banks of the river are owned by different persons, one of whom is licensed, and, by virtue of it, enjoys the ferry franchise, while the other is keeping a public ferry without any license or franchise, the former cannot, by injunction, restrain the latter from running his ferry, any more than a licensed merchant might restrain an unlicensed merchant from doing business by his side. Levisay v. Delp, 9 Bax., 415. 2. Ferries licensed, franchised, and established on rivers between this and other States. — Ferries may be licensed, franchised, and estab- lished by the county court on rivers forming the boundary line be- tween this and other States, although the limits of this State extend only to the middle of the stream — in this case the Mississippi river. Memphis v. Overton, 3 Yer., 389-392; Conway v. Taylor, 1 Black, 66 U. S., 603, 630, 17 L. ed., 191, 201; Ferry Co. v. East St. Louis, 17 Otto, 107 U. S., 365, 27 L. ed., 419. 3. Ferries between States interstate commerce. — Ferries transport- ing passengers and freight between this and another State are not liable for this tax, because such business is interstate commerce. Ferry Co. v. Pennsylvania, 114 U. S., 196, 29 L. ed., 158. FLYING JENNIES. In cities, towns, and taxing districts of over 30,000 inhabitants, each, per month $ 5 00 In cities, towns, and taxing districts under 30,000. in- habitants, each, per month 2 50 ■ Eevenue Law and Rate of Taxation. 37 FORTUNE TELLERS. Each, per annum $ 10 00 FRUIT STANDS. In cities, towns, or taxing districts of 50,000 inhabit- ants or over, each, per annum $ 5 00 In cities, towns, or taxing districts under 50,000 in- habitants, each, per annum •. . . . 2 50 Provided, that this shall not apply to persons en- gaged in the mercantile business, paying an ad va- lorem merchant's or privilege tax as such, and who shall sell fruit as an incident thereto from the same established business place, when the ad valorem value of their stock of fruit does not exceed twenty per centum of the value of their general stock of merchandise. FUTURES. Each and every person, firm, partnership, or corpora- tion doing a brokerage or commission business for cash or actual future delivery on the regularly or- ganized exchanges of the country or through any member of said exchanges in cities, towns, or tax- ing districts of 30,000 inhabitants or over, or with- in one mile of said city, town, or taxing district, each, per annum $ 500 00 In cities, towns, or taxing districts of [and] from 20,- 000 to [less than] 30,000 inhabitants, or within one mile of said city, town, or taxing district, each, per annum . 400 00 In cities, towns, or taxing districts of less than 20,000 inhabitants, or within one mile of said city, town, or taxing district, each, per annum 300 00 Provided, that nothing in this act shall be construed to license any business now prohibited by law. GAMES. Billiard tables, pool tables, bagatelle tables, tivoli ta- ' bles, Jenny Lind tables, tenpin alleys, roller coast- ers, or shooting galleries or stands, on each, in cities, towns, or taxing districts of 20,000 inhabit- ants or over, each, per annum, in each $ 25 00 38 Tennessee Tax Digest. In cities, towns, or taxing districts of [and] from 10,- 000 to [less than] 20,000 inhabitants, each, per an- num 15 00 In cities, towns, or taxing districts of 10,000 and less inhabitants, each, per annum 10 00 In counties outside of cities, towns, or taxing dis- tricts, each, per annum 25 00 But this shall not apply to pool or billiard tables in private houses not used for profit, nor to tenpin al- leys on private premises not used for profit and not open to the public, or associations for social pur- • poses, or schools where no liquors or refreshments are sold. All devices used by persons as a source of profit to themselves, such as throwing at wooden figures or any other object, throwing rings, or any device of like nature, and striking an object to test the strength, and blowing to test the lungs, each, per annum, in each county $ 10 00 Not affected by Acts 1907, ch. 563. — This tax is not affected in any way by Acts 1907, ch. 563, for the reason that the provisions thereof do not in any way change the provisions here made, but are in accord- ance with them. — Ed. GAS COMPANIES. In cities, towns, or taxing districts of 70,000 inhabit- ants or over, each, per annum $ 700 00 In cities, towns, or taxing districts of [and] from 30,- 000 to [less than] 70,000 inhabitants, each, per an- num 350 00 In cities, towns, or taxing districts of [and] from 20,000 to [less than] 30,000 inhabitants, each, per annum 250 00 In cities, towns, or taxing districts of [and] from 10,000 to [less than] 20,000 inhabitants, each, per annum 125 00 In cities, towns, or taxing districts of [and] from 4,000 to [less than] 10,000 inhabitants, each, per annum 75 00 In cities, towns, or taxing districts under 4,000 inhab- itants, each, per annum 50 00 Kevenue Law and Rate of Taxation. 39 No municipality owning its own plant shall be re- quired to pay this tax, except in cities, towns, or taxing districts of more than 8,000 inhabitants, which sells or supplies gas for commercial pur- poses. HOTELS AND TAVERNS. For each room, excepting dining rooms, kitchens, and parlors, for which more than $1 per day is charged, each room, per annum . $ 75 For each room, excepting dining rooms, kitchens, and parlors, for which is charged $1 or less per day, per room, per annum Hotels kept at places of summer resorts to be taxed as other hotels, but may be paid semiannually. 50 Privilege of a sum and a percentage valid; exemption of number of rooms valid. — A privilege tax of a certain sum and a per centum on the actual rental or estimated value of the same may be levied; and the fact that hotels having less than a certain number of rooms are c'xempted from the privilege tax does not invalidate the law, because privileges may be classified and the tax fixed for each class. Fulgum V. Nashville, 8 Lea, 635, 638-640; Robbins v. Taxing District, 13 Lea, 309; Stratton v. Morris, 5 Pickle, 525. HUCKSTERS. Persons who either at stalls or booths or from wagon sell butter, eggs, poultry, fruit, or other produce from the farm, garden, or orchard directly to the consumers in cities, towns, or taxing districts of 60,000 inhabitants or over, each, per annum $ 5 00 In cities, towns, or taxing districts of [^"^^1 ^^om 20,000 to [less than] 60,000 inhabitants, each, per annum In cities, towns, or taxing districts of [and] from 6,000 to [less than] 20,000 inhabitants, each, per annum In cities, towns, or taxing districts of less than 6,000 inhabitants, each, per annum 1 00 3 00' 2 00 40 Tennessee Tax Digest. ICE. (Dealers in.) This shall apply to each person, firm, or corporation selling imported or home ice, and to each ice depot from which ice is delivered. In cities, towns, or taxing- districts of 35,000 inhabit- ants or over, each, per annum $ 100 00 In cities, towns, or taxing districts of [and] from 15,000 to [less than] 35,000 inhabitants, each, per annum 75 00 In cities, towns, or taxing districts of [and] from 6,000 to [less than] 15,000 inhabitants, each, per annum 50 00 In cities, towns, or taxing districts of [and] from 2,500 to [less than] 6,000 inhabitants, each, per an- num 10 00 In cities, towns, or taxing districts of [and] from 1,000 to [less than] 2,500 inhabitants, each, per an- num 5 00 Provided, the above tax shall apply to and be paid when the factory is located on territory adjacent to such city, town, or taxing district within a distance of two miles. Each person, firm, or corporation re- tailing or selling ice from any car running upon any railroad in this State, in lieu of all other taxes to be paid in any county of the State through which the cars run and in which such sale or sales may be made 50 00 Retail ice dealers, except manufacturers running wag- ons in connection with their business, each wagon, per annum 5 00 This tax shall not apply to municipal corporations owning and operating ice works and plant. Provided, that this tax shall not apply to towns un- der 1,000 inhabitants. Two or more ice depots cannot be maintained under one license and one tax. — Under the wording of this statute making the privilege tax apply to each ice depot from which ice is delivered, and under the principle of the decision in the case of Grain v. State, 2 Yer., 390, 393, there must be a license and tax paid for each of such ice depots; and two or more such ice depots cannot be maintained under one license and one tax, thus obviating the decision in the case of Howe Ice Co. llEVENUE Law and Kate of Taxation. 41 V. Shelton, MS. opinion, at Nashville, December term, 1903, which was decided under Acts 1901, ch. 128, sec. 4, pp. 200, 206, 212. INTELLIGENCE OFFICES AND EMPLOYMENT AGENCIES. Each office, per annum $ 10 00 ITINERANTS. Every corporation, partnership, or individual acting as itinerary [itinerants], whether physician or not, ■ either selling medicine or advertising their services, or both, by appearing on the streets or elsew^here, or making harangue for the purpose of advertising or selling as aforesaid, shall pay to the State comp- troller, direct, a privilege tax of $JJjQO p*^^ annum JQTjhe w1iQk3tat£^ and to ^each county , municipal- ity, where they exercise the privilege, as ^follows : To counties having a population of 60,000 or over, per annum $ 40 00 -^^ To counties having a population of 30,000 and less than 60,000, per annum 25 00.^ To counties having a less population than 30,000, not more, per annum, than 15 00 ' To cities, towns, or taxing districts having a popula- tion of 25,000 or over, per annum 40 00 — ^ To cities, towns, or taxing districts having a popula- tion of 5,000 and less than 25,000, per annum 25 00^ " To cities, towns, or taxing districts having a popula- tion of less than 5,000, not more, per annum, than. . 15 00**^ — No license to be issued for less than a year. Manufacturer selling his medicine through druggist in and at drug- gist's store is not subject to tax on itinerants. —A manufacturing com- pany selling its medicines through a druggist, at and in the store of the druggist, cannot be classed as itinerants under this statute, and such company is not subject to the tax on itinerants. Opinion of Attorney-General Gates. LAUNDRIES. (To all persons, firms, or corporations doing a public laundry business.) In cities, towns, or taxing districts of 20,000 inhabit- ants or over, each, per annum .....$ 50 00 42 Tennessee Tax Digest. In cities, towns, or taxing districts of [and] from 5,- 000 to [less than] 20,000 inhabitants, each, per an- num 25 00 All under 5,000 inhabitants, each, per annum 7 50 This shall also apply to such laundries run by hotels for profit. This shall not include towns and vil- lages of less than 1,000 inhabitants. Agents for laundries located outside the State, for "each laundry so represented in each county 10 00 Agents for nonresident laundries taxable. — The privilege tax im- posed on agents for laundries located outside the State is valid. This is not commerce, and is not in violation of the interstate commerce provision of the constitution of the United States. Smith v. Jackson. 19 Pickle, 673. LIGHTING COMPANIES. (Other than electric light companies and gas companies.) Corporations, companies, firms, individuals, or asso- ciations furnishing lights for street or other pur- poses to towns, cities, or taxing districts, or rail- roads or sleeping car companies in cities, towns, or taxing districts of 50,000 inhabitants or over, each, per annum, in each county $ 100 00 In cities, towns, or taxing districts of under 50,000 and over 20,000 inhabitants, each, per annum, in each county 25 00 -^ In cities, towns, or taxing districts of under 20,000 inhabitants, each, per annum, in each county 10 00^-i^ LIGHTNING ROD DEALERS OR AGENTS. Each dealer or agent in each county shall pay, per annum $ 100 00 Agents exempt because of interstate commerce, when and when not. — Agents representing nonresident manufacturers or owners of lightning rods in another State may sell by sample and take orders in this State for such lightning rods, and fill such ord'ers, without becom- ing liable for this tax, though if such agents are not merely taking orders or selling by sample such lightning rods, but are carrying on a business in this State, they are subject to this tax. This statute, in addition to being a revenue statute, is a public regulation intended to protect citizens from irresponsible dealers in so called lightning rods. Eevenue Law and Rate of Taxation. 43 Opinion of Attorney-General Gates. See notes under the headings of Peddlers and Sewing Machine Gompanies and Dealers in, post, pp. 56, 61, and 62. LIQUOR DEALERS. Wholesale, and, in addition, taxed as other mer- chants $ 500 00 Retail, taxed as other merchants, and, in addition, shall pay as follows : In cities, taxing districts, or towns of 6,000 inhabit- ants or over, each, per annum 500 00- At any place, city, taxing district, or town of less than 6,000 inhabitants, each, per annum 500 00- Provided, that in towns of less than 6,000 inhabitants whose charters of incorporation have been abol- ished to take effect before January 10, 1908, deal- ers shall not be liable for the above tax, but shall pay as provided in the revenue act of 1903. Persons selling beer or any quantity of liquors on steamboats, flatboats, or any other vessel or water craft or from railroad cars, shall pay a tax, each, in lieu of all other taxes to be paid in any county they may elect, per annum 500 00 Persons selling liquors in quantities of one quart or more, except manufacturers selling to dealers in original packages of not less than five gallons, are wholesale dealers, and persons selling smaller quantities than five gallons are retail dealers; and the tax on liquor dealers applies to all drug stores, except in uses of wine for sacramental purposes and alcohol for domestic purposes. No producers of grape wine, where they raise and make the wine themselves, shall pay any privilege tax for selling the same ; provided, they shall not sell in quantities of less than one and a half (1>^) gallons. Liquor dealers are defined as every person, company, or firm selling spirituous, vinous, or malt liquors, beer or ale, or intoxicating bitters, or any medi- cated or adulterated cider ; or any social club or association, incorporated or otherwise, which han- dles such liquors for sale. The procuring of United States revenue license to wholesale or re- tail liquor dealers shall be taken as prima facie evi- 44 Tennessee Tax Digest. dence that the parties are in the wholesale or retail liquor business, and are subject to State and county taxes, unless established by proof that they are not so engaged. Upon any clerk's receiving knowledge of such internal revenue license, he shall have a right to collect the taxes by distress warrants. 1. Wholesale and retail liquor dealers defined and distinguished. — The above statutory definition of wholesale and retail liquor dealers is apparently confusing; but the meaning seems to be clear that a retail dealer, licensed as such, may sell in any quantities less than five gallons, while a wholesale dealer, licensed as such, may sell in any quantities not less than one quart. The limit of the maximum quan- tity which the retail dealer may sell is any quantity less than five gal- lons, while the limit of the minimum quantity which the wholesale dealer may sell is one quart. The apparent confusion grows out of the fact that both retail and wholesale licensed dealers may sell any quantities of a quart or more and under five gallons, and any quantity between such minimum and maximum. But the distinctive character- istic of each is that the wholesale licensed dealer is unlimited as to the maximum quantity of sales, and is only limited to the minimum quan- tity of one quart, while the retail licensed dealer is unlimited as to the minimum quantity of sales, and is only limited to the maximum quan- tity of less than five gallons. The license must show whether it is for wholesale or retail dealing, and then the statute prescribes the maximum quantity of sales for the retail dealer and the minimum quan- tity for the wholesale dealer, and the licensee must govern himself accordingly. But where the privilege is being exercised by one with- out license, and sales of quantities between the maximum and mini- mum only are made, the dealer may, under the usual definition, be either a wholesale or retail dealer — a wholesaler dealer, if he sells to other dealers only: and a retail dealer, if he sells to consumers only; and if he sells to both, he may be classed as either a wholesale or retail dealer, or both, but will be liable for only one tax. The distinc- tion within this narrow limit is only important in order that the defend- ants may be properly characterized and charged in indictments or presentments for the violation of the statute in selling without a license and in proceedings to collect the tax and penalties. There is no difference in the amount of the tax, unless the case falls within the first proviso. — Ed. As to distinction between wholesale and retail dealers where not specifically defined by statute, as in cases falling within the above maximum and minimum quantities, see Harrison v. State, 12 Pickle, 550, and citations. 2. Prohibition of sales of intoxicating liquors except by manufac- turers in wholesale packages or quantities is valid.— The four mile law Kevenue Law and Eate of Taxation. 45 statutes (Acts 1877, ch. 23; Acts 1887, ch. 167; Acts 1899, ch. 221; Acts 1903, ch. 2; and Acts 1907, ch. 17) prohibiting the sale of intoxicating liquors, except in certain incorporated cities, are not unconstitutional, .because they except from their operation sales by manufacturers of such liquors in wholesale packages or quantities, which must be in packages or quantities designed and suitable for the purpose of trade, and to be sold again, and not sales to persons for consumption or as retailers. Webster v. State, 2 Gates, 491, 495-507. 3. What constitutes wholesale packages or quantities of intoxica- ting liquors. — The sales of intoxicating liquors " in wholesale packages or quantities " that may be lawfully made by manufacturers, under the exception in their favor in the four mile law, are sales to purchas- ers of packages or quantities for the purposes of trade, and to be sold again, and not sales to persons for consumption. Harrison v. State, 12 Pickle, 548. 4. Manufacturer may sell to dealers in unbroken packages of not less than five gallons without license. —A manufacturer of liquor out of the produce of this State, who sells the same from his place of man- ufacture in unbroken packages or as manufacturer to dealers, is not a dealer in liquor, and is not liable for the privilege tax as such under the revenue acts of 1881 and 1883. Taylor v. Vincent, 12 Lea, 282, 285; Steel & Wire Co. v. Speed, 2 Gates, 540. But under this statute., the manufacturer can now sell to dealers only in original packages of not less than five gallons, without the license and payment of the privi- lege tax. — Ed. 5. Manufacturer of liquor cannot retail to consumers without license. — A manufacturer of liquor out of the products of this State, who sells by retail to consumers, is liable for the privilege tax as a retail liquor dealer, and is also indictable for selling \vithout having first taken the oath not to adulterate, and without having given bond, etc. Webb V. State, 11 Lea, 662. 61 May recover wholesale privilege, when liable for retail. — But un- der the same facts as in the last note, where the manufacturer had paid the privilege tax as a wholesale liquor dealer under protest, and sued to recover same, he was permitted to do so, although he is said to be liable for the retail liquor dealer's privilege tax, which in no case was less than the wholesale liquor dealer's privilege tax. Webb V. State, 11 Lea, 662, 667; Acts 1881, ch. 149, sec. 4, p. 201. 7. Producer of wine may sell without license, when. — Under this statute, a producer of wine out of grapes raised by himself may sell the same to consumers or dealers in quantities of not less than one and a half gallons without a liquor dealer's license. — Ed. But before 46 Tennessee Tax Digest. this statute, and similar statutes, a manufacturer of wine out of grapes produced in this State by himself, selling his wine to consumers with- out a liquor dealer's license, rendered hinjself liable for the privilege tax imposed on liquor dealers, and subjected himself to indictment and the penalties for exercising the privilege without license, under a statute imposing a privilege tax on all liquor dealers " except manu- facturers who sell to be sold again." Kurth v. State, 2 Pickle, 134; Steel & Wire Co. v. Speed, 2 Gates, 540. But if such producer of wine sell the same in quantities of less than one and one-half gallons, he will be subject to the tax under this statute; and if it be sold in such case without license, he will be subject to the penalties prescribed and to indictment. — Ed, 8. Wine fermented liquor; statute includes spirituous and fermented liquor. — Wine is not spirituous liquor. Wine is fermented liquor, while spirits are distilled liquors. Caswell v. State, 2 Hum., 402; Fritz V. State, 1 Bax., 15; Sarlls v. United States, 152 U. S., 576, 38 L. ed., 558. But, in view of this statute, this distinction is immaterial, because it expressly includes spirituous, vinous, and malt liquors, etc. — Ed. 9. Druggists limited by statute. — Druggists can sell wine for sac- ramental purposes and alcohol for domestic purposes; but if they sell liquors, otherwise than in the excepted cases, they are subject to the laws governing and pertaining to liquor dealers. Druggist Cases, 1 Pickle, 449. 10. Druggists selling within provisions of statute are not liable because they have federal license. — Druggists selling wine for sacra- mental purposes and alcohol for domestic purposes are not liable for the privilege tax imposed upon liquor dealers, though they may be compelled, under the federal revenue laws, to take out a license from the federal government for such sales. But the sales must be confined to these purposes, and such sales cannot be used to cover or screen sales for other purposes not authorized by the statute. Opinion of Attorney-General Gates. .11. Dealers must pay merchant's tax and this privilege. — In addi- tion to this privilege tax, liquor dealers must pay taxes as merchants. Kelly V. Dwyer, 7 Lea, 180. This statute so expressly provides. — Ed. 12. Social clubs liable. — Social clubs selling liquors are liable for the privilege tax imposed upon liquor dealers. Hermitage Club v. Shel- ton, 20 Pickle, 101. 13. Licensed wholesale liquor dealers are not subject to tax'f or selling beer either as owners or as agents. — Wholesale liquor dealers, licensed as such, purchasing beer and selling it as their own, or selling it upon Kevenue Law and Rate of Taxation. 47 commission, are not liable for the separate and independent privilege tax imposed upon agents of breweries. Opinion of Attorney-General Gates. 14. Liability of distillers for selling liquors. — A distiller selling liquors otherwise than to dealers in original packages of not less than five gallons is liable for the privilege tax imposed upon liquor dealers by this act. Opinion of Attorney-General Gates. 15. Liability for privilege tax for selling liquor in violation of the four mile law. — While the payment of a privilege tax will not author- ize sales of liquor in violation of the four mile law and will not pro- tect the offender against prosecution, yet if one sells liquor in viola- tion of such law, whether openly or clandestinely, he is liable for the privilege tax imposed. Opinion of Attorney-General Gates. 16. License issued before this act and postdated is not authorized, and the new rate prescribed by this act must be paid. — License issued before this act became effective and dated afterwards to run for one year from the postdate, at the rate of tax prescribed by Acts 1903, ch. 257, sec. 4, a less rate than that prescribed by this act, is not author- ized, and the tax prescribed by this act must be paid. Opinion of Attorney-General Gates. 17. Increased rate after license issued must be paid. — The rate of taxation on a privilege may be changed by the legislature pending the period for which a license is issued, and the tax must be paid accord- ing to the rate fixed by law for any given time. The license is not a contract binding on the State. Kelly v. Dwyer, 7 Lea, 180, 187, 193. 18. Hop tonic and homestead cider, when intoxicating drinks, are intoxicating liquors in violation of four mile law. — A sale within four miles of a schoolhouse, and outside of an incorporated town, of " hop tonic ■' and *' homestead cider," drinks that are capable of pro- ducing intoxication, falls within the prohibition of the four mile law against the sale of *' intoxicating beverages " or " intoxicating liquors " within four miles of any schoolhouse and outside of an incorporated town. Moore v. State, 12 Pickle, 544. 19. Rules for determining when Pcruna or other compound medi- cines are intoxicants or "intoxicating bitters." — Whether Peruna is embraced within the meaning of the statute as " intoxicating bitters " is a question of fact, and v^hether the sale of Peruna renders the seller liable for the tax imposed upon liquor dealers is also a question of fact to be determined by the facts and circumstances of each particu- lar case. If it be sold in good faith as a medicine, the seller is not liable for the tax, although it may contain a large part of alcohol and 48 Ten^nessee Tax Digest. if taken in large quantities might produce intoxication. If it is sold to be drunk as a beverage or sold knowingly to persons who bought it lor use as a beverage; if, as a matter of fact, such preparation is in- toxicating when used as a beverage, then the seller would be liable for the tax imposed upon liquor dealers, for in such case the prepara- tion could fairly be classed as " intoxicating bitters." The fact that a compound, patent, or proprietary medicine may contain as one of its ingredients a given amount of alcohol is not necessarily determinative of the question whether it is an intoxicant, because it is a matter of common knowledge that alcohol, to a greater or less degree, is necessary for the preservation of the other ingre- dients which go to make up such compound, patent, or proprietary medicine; and the fact that such preparations when taken in sufficient quantities will intoxicate does not furnish a sufficient criterion to class them as intoxicants or " intoxicating bitters." Opinion of Attorney- General Gates. 20. License for not less than a quarter of a year. — License cannot be issued for a time less than a quarter of a year. See sec. 27i (2a), Gode, sec. 1003, and notes, post, p. 161. LITIGATION. Each suit in law or equity in courts of record, to be paid by the unsuccessful party $ 2 50 Each indictment or presentment 5 00 Each appeal to the supreme court in criminal cases, if defendant is unsuccessful 7 50 Each appeal or writ of error or certiorari from the circuit or county court or chancery court to the su- preme court 5 00 Each appeal or certiorari from a justice of the peace. 2 50 Provided, that on appeal cases from justices' courts, where the case is compromised before trial, this tax shall not accrue. All of the above taxes shall be taxed in bills of costs, and are hereby declared part of the costs in the cases, and shall in no case be remitted when such tax can be made out of the defendant ; and said ofificers collecting said taxes and under the small ofifense act shall report the amount collected by them every ninety days, and pay the same over to the treasurer of the State, and report the same to the comptroller. Eevenue Law and Rate of Taxation. 49 No taxes shall be paid on application for dower or homestead, and no taxes on application of guar- dians to sell property for maintenance of wards, or to sell or exchange property for manifest interest of wards, or to trench on the property of wards, or on application for petition [partition], and no taxes on suits brought by the State, county, or munici- pality to collect taxes ; provided, that any suit com- menced in a court of record and carried to another court of concurrent jurisdiction and appeals from the county court to the circuit court or criminal court, but one litigation tax shall be paid ; provided, that if any judge or attorney-general shall remit any part of the State tax, the same shall be taken by the comptroller out of the salary of the judge or attorney-general remitting same. 1. This tax is constitutional. — The statute imposing a tax on litiga- tion to be paid by the unsuccessful party is not unconstitutional, but valid. Harrison v. Willis, 7 Heis., 35: Lawyers' Tax Cases, 8 Heis., 638; State v. Stanley, 3 Lea, 525. 2. "Unsuccessful party" defined. — The party adjudged to pay the costs is the unsuccessful party with reference to the tax on litigation, though otherwise successful. State v. Cole, 6 Lea, 492, 493: Elliston V. Winstead, 10 Lea, 472, 473; State Tax Cases, 12 Lea, 746. 3. Surety of unsuccessful party not liable for the tax. — A surety on a prosecution or appeal bond, against whom, with his principal as the unsuccessful party, the costs of the cause are adjudged, is not liable for the tax on litigation. State Tax Cases, 12 Lea, 744. 4. Successful party not liable for. — The State is not entitled to re- cover as costs, against the successful party, the tax imposed upon the unsuccessful party, in case of the latter's insolvency. State v. Nance, 1 Lea, 644: State v. Stanley, 3 Lea, 524, 525; Galbraith v. Gaines, 10 Lea, 573. 5. Successful party is liable for State tax on litigation accrued at his instance when it cannot be collected out of the unsuccessful party. — But the supreme court decided in an oral opinion at Jackson, April term, 1899, in the case of the Illinois Central Railroad Co. v. T. A. Bolton, that the successful party is liable for the State tax upon litigation as costs accruing at his instance when execution against the unsuccessful party has been returned nulla bona, because the statute had declared such taxes to be part of the costs in the cases. 50 Tennessee Tax Digest. Acts 1897, ch. 2, was cited. Subsequent revenue acts, including that of 1907, hav€ made the same declaration. The tax in this case was likely that upon the appeal, for which the successful appellant was held liable, because it could not be collected out of the unsuccessful appellee. The tax cannot be said to accrue at the instance of the suc- cessful party, unless he be the actor in the suit, as plaintiff in the lower court or appellant in the supreme court. See Code, sec. 4945. — Ed. 6. But if paid, collector bound to account for. — But a person author- ized to collect it is liable to the State for the tax collected by him from the successful party, if not paid under protest, unless he shows that he has not repaid it to the party, or has been sued for it by him, or notified by him not to pay it over. Galbraith v. Gaines, 10 Lea, 568, 573-575. 7. Partial payment applied to tax. — If the clerk receives from the unsuccessful party a sum insufficient to pay all the costs, he should pay the State tax first, unless the party himself should make an appli- cation of the payment to a specific part of the costs. State v. Stanley, 3 Lea, 524; State Tax Cases, 12 Lea, 746; Griffin, Ex parte, 4 Pickle, 550, 551. 8. Litigation tax is not costs, but a specific tax for revenue. — Tax on litigation is not costs in the cause, that is, it is not a part of the necessary expenses incident to the conduct of the suit and disburse- ments allowed by law, as fees to witnesses and officers of court; but it is imposed as a specific tax upon unsuccessful litigants for the pur- pose of raising revenue for the State. State v. Nance, 1 Lea, 644, 645; State V. Stanley, 3 Lea, 525; State v. Hartman, 5 Lea, 118, 119; Ellis- ton V. Winstead, 10 Lea, 473; Galbraith v. Gaines, 10 Lea, 573; State Tax Cases, 12 Lea, 745, 746; Eastman v. Nashville, 13 Lea, 722; John- son V. State, 1 Pickle, 327; Griffin, Ex parte, 4 Pickle, 550; State v. Da- vidson Co., 12 Pickle, 182; Knox Co. v. Fox, 23 Pickle, 729. 9. Tax not costs, though so declared by legislature, and no im- prisonment for nonpayment.— This tax is not costs, and a nolle prosequi entered to an indictment, upon condition that the " defend- ant pay the costs of the cause," does not render him liable for the State and county tax on the suit. State v. Hartman, 5 Lea, 118. A person convicted of a misdemeanor, and, in default of paying or secur- ing the *' fine and costs," sentenced to the county workhouse to work the same out, cannot be detained to work out the tax on litigation. Johnson v. State, 1 Pickle, 325. This tax is not costs in a misde- meanor case in such sense that the convict may be imprisoned for it, upon his failure to pay or secure it, though it is declared by statute to be a part of the costs. Griffin, Ex parte, 4 Pickle, 547, 550; State v. Davidson Co., 12 Pickle, 182; Knox Co. v, Fox, 23 Pickle, 729. Revenue Law and Ra.te of Taxation. 51 10. Tax accrues when suit commenced. — The tax on litigation ac- crues when the suit is commenced; and where it is compromised be- fore the return day of the writ, and dismissed, the defendant agreeing to pay the costs is the unsuccessful party, and is liable for the tax. Elliston V. Winstead, 10 Lea, 472. 11. Application and levy. — This statute applies to criminal as well as civil cases, and county courts may assess the tax in both cases for the counties. State v. Howran, 8 Heis., 824. 12. Litigation tax on motions, when. — Motions, when substitutes for the common law actions on the case or actions of debt, are tax- able with the litigation tax. State v. Allison, 2 Swan, 373; Motions against Curry, 12 Heis., 51 ; Woodward v. Alston, 12 Heis., 595. 13. Motion against sheriff subject to tax. — A motion against a sheriff for an insufficient return of an execution is, in substance and legal effect, a suit or action, and, therefore, subject to the tax on liti- liation. State v. Allison, 2 Swan, 375; Motions against Curry, 12 Heis., 51; Woodward v. Alston, 12 Heis., 595. 14. But not in supreme court. — But the same motion in the supreme court was held not to be subject to the tax on litigation, for the rea- son given that it is only a means of enforcing a judgment already rendered, and is not an independent suit, and could not be maintained in the supreme court as an original suit, but it is a proceeding inci- dental to the appellate jurisdiction of the supreme court. Motions against Curry, 12 Heis.. 51; Woodward v. Alston, 12 Heis., 595; Mc- intosh V. Paul, 6 Lea, 45, 47. 15. Motion against clerk subject to tax. — A motion made to recover from a clerk fees received by him for enrollments not made is a suit subject to the tax on litigation. Woodward v. Alston, 12 Heis., 581, 595. 16. Litigation tax on bastardy cases. — Litigation tax on bastardy cases must be taxed and collected by the clerk, and for his failure to do so he may become liable therefor himself. State v. Cole, 6 Lea, 492, 493. 17. No litigation tax on dower and certain guardian cases under this statute; former rule under statutes making no exceptions. — Under statutes not excepting, dower cases and cases of petition by guardian lo invest ward's funds in land were subject to the tax on litigation. State V. Cole, 6 Lea, 492, 493. But under this statute, these cases are excepted, and, therefore, are not subject to the tax. — Ed. 52 Tennessee Tax Digest. 18. Tax on trials for violation of town ordinances. — Trials for the violation of town ordinances are not subject to the tax on litigation. State V. Mason, 3 Lea, 649. But under this statute, the litigation tax of two dollars and fifty cents would attach upon appeals to the circuit court, and five dollars upon appeals, etc., to the supreme court. There is no tax before the city police court or recorder's court, because it is not a court of record, and the litigation tax is not imposed by this statute upon cases before courts not of record. City recorder's courts or police courts of record may be established, and there may possibly be such a special court or courts in this State; and if so, the tax would attach to all suits therein. — Ed. 19. City not liable for; no imprisonment to secure payment of. — The tax upon cases tried in the municipal courts is to be paid b}^ the parties convicted, and is not a tax imposed upon the city or the exer- cise of one of its agencies or powers, nor is it costs in cases tried before these courts; and the convict cannot be imprisoned to secure the payment of this tax. The city is not liable for this tax unless it is collected. Eastman v. Nashville, 13 Lea, 717, 722; Johnson v. State, 1 Pickle, 327, 328. But see the next preceding note. 20. Litigation tax on certiorari from justice, though compromised before trial. — The litigation tax accrues, though the certiorari from a justice of the peace be compromised and dismissed before trial, for the reason that the tax is imposed upon each appeal or certiorari, and app.eal cases only are excepted where compromised before trial. Opin- ion of Assistant Attorney-General Faw. 21. What litigation tax on cases in court of civil appeals. — There is no litigation tax on appeals to the court of civil appeals. The tax on suits in courts of record may accrue in that court; but the tax on ap- peals, etc., to the supreme court will not accrue in the court of civil appeals. — Ed. LIVERY, SALE, OR FEED STABLES. Each stall, per annum $ 50 ^ Outside of towns of more than 5,000 and less than 5,500 population in counties of more than 24,900 and less than 25,000 population, per annum 5 00*^ 1. Licensed livery stable keeper not liable for privilege on bug- gies. — It was held in Bell v. Watson, 3 Lea, 328, that where a livery stable keeper was licensed as such, he was not liable for a privilege tax on his buggies, the running of which was also a privilege, because this was an essential part of the business of a livery stable, and be- cause it would not be presumed that the legislature intended to twice Eevenue Law and Kate of Taxation. 53 tax the same business for exercising the same privilege, unless ex- pressly so provided, which, it seems, may be done. Taxing District V. Emerson, 4 Lea, 314; Taxing District v. Brackett, 4 Lea, 323; Kelly V. Dwyer, 7 Lea, 180, 188; Memphis v. Express Co., 18 Pickle, 243. 2. Except in carrying passengers; who are passengers defined, but rule changed by statute. — Keepers of livery stables who pay privilege taxes as such are not liable for the vehicle privilege tax for the vehi- cles used in the course of their ordinary business for hire to customers, and not for transportation of passengers. Passengers are parties trav- eling in conveyances from point to point for a stated price, as parties traveling from depots to hotels or residences, or in hacks running regularly between different towns, or for so much per head between points in vehicles not necessarily run regularly. Bell v. Watson, 3 Lea, 328; Kelly v. Dwyer, 7 Lea, 188; Rainey v. Eslick, oral opinion, Nashville, March, 1895. But it seems that under the head of " Trans- fer Business for Hire " there is no additional tax on livery stables for carrying passengers. See said heading, post p. 65. 3. May keep a shed without paying additional privilege. — So, a licensed livery stable keeper may keep stock and vehicles under a shed without additional license, where the keeping of a shed yard was also a privilege. Taxing District v. Brackett, 4 Lea, 323. LUMBER DEALERS. Lumber dealers who buy and sell lumber sawed, dealers in sawed logs, and dealers in staves must pay a privilege and ad valorem tax as merchants ; provided, that merchants who also deal in lumber shall pay only one privilege tax. 1. Logs and lumber are exempt as " articles manufactured from the produce of the soil," when. — Logs grown on the soil of the State, when in the hands of the sawyer or mill-operating manufacturer and upon his yard ready to be sawed, and the lumber upon his yard, cut from said logs, are articles manufactured from the produce of the State within the meaning of the constitution (art. 2, sec. 30) exempt- ing from taxation all articles manufactured from the produce of the State. Benedict v. Davidson Co., 2 Gates. 183, 188-191. 2. Manufactured articles are exempt, but a privilege tax may be laid for selling. — The constitution (art. 2, sec. 30) operates to protect arti- cles manufactured of the produce of the State from taxation while it remains in the manufacturer's hands, but does not inhibit the laying of a privilege tax upon the occupation of selling such articles, when pursued even by the manufacturer. Kurth v. State, 2 Pickle, 134; 54 Tennessee Tax Digest. Steel & Wire Co. v. Speed, 2 Gates, 540; Steel & Wire Co. v. Speed, 192 U. S., 522, 48 L. ed., 547. See notes 5-7, and 11 under sec. 3. ante, pp. 11 and 12. MACHINES. Nickel-in-the-slot machines or nickel-in-the-slot mu- sic boxes or phonographs or other machines or de- vices of like character (not run in violation of crim- inal law), each, per annum $ 10 00 Penny-in-the-slot machines, each, per annum -. . 2 50 Provided, that this shall not apply to merchandise machines delivering merchandise and kept by deal- ers in their regular place of business, paying a priv- ilege tax as merchant. MAGIC LANTERN SHOWS. (See Circuses and Menageries.) MARRIAGE LICENSE. Each (for school purposes, and the tax to be kept in the county) $ 1 00--^ PARCEL CARS. Express or parcel cars, running on streets, railroads, or dummy lines, in counties of 50,000 inhabitants or over, each car, per annum $ 50 00 In counties of less than 50,000 inhabitants, each car. per annum 25 00 PARKS— PUBLIC. Public parks (when visitors are charged an admis- sion fee more than six times during the year, or more than 10 cents at any one time), each, per an- num $ 100 00 PAWNBROKERS. In cities, towns, or taxing districts of 30,000 inhabit- ants or over, each, per annum $ 150 00 In cities, towns, oi* taxing districts of [and] from 8,000 to [less than] 30,000 inhabitants, each, per an- num 75 00 Revenue Law and Rate of Taxation. 55 In cities, towns, or taxing districts of [and] from 6,000 to [less than] 8,000 inhabitants, each, per an- num 75 00 In cities, towns, or taxing districts under 6,000 inhab- itants, each, per annum 50 00 Outside of towns, taxing districts, and cities, in each county, per annum 10 00 In addition, they shall pay a tax as other merchants. PEDDLERS. Buying or selling for profit, gift, prizes, or exemp- tions, or by the formation of purchasing clubs, or both, if on foot, in each county, each, per annum. .$ 10 00 If with horse and vehicle, in each county, each, per annum 20 00 If with more than one horse, in each county, each, per annum 20 00 If for patent medicines and nostrums, and on foot or horse, in each county, each, per annum 15 00 If for patent medicines and nostrums, if with horse and wagon, in each county, each, per annum 20 00 Peddlers of patent school apparatus, maps, charts, and other articles, if on foot, in each county, each, per annum 150 00 If with horse and vehicle, in each county, each, per annum 300 00 If with more than one horse, for each additional horse, in each county, each, per annum 100 00 Peddlers of coal oil and gasoline, in each county, per annum 10 00 This shall apply to all parties, if the article is deliv- ered in other manner than by mail, freight, or ex- press. This tax shall not apply to peddlers deal- ing in eggs, fowls, and butter. It shall be the duty of each justice of the peace, constable, sheriff, and deputy sheriff to demand of each peddler to see his license ; and if the person so peddling has no license, then said ofificer shall arrest said person and seize his stock of goods and take him before the county court clerk, when said clerk shall require the pay- ment of said tax and a fee of $2 to said officer for said arrest ; and if said tax is not voluntarily paid, 5^ Tennessee Tax Digest. then the clerk shall by distress warrant collect the same, together with the costs. 1. Peddlers of goods of other States here, subject to this privilege. — Peddlers of articles manufactured and produced in other States are required to pay this tax, as well as peddlers of articles manufactured and produced here, because when the goods of other States are brought to this State they become a part of its general property, and amenable to its laws; provided/that no discrimination is made against them in favor of the goods of this State. Machine Co. v. Cage, 9 Bax., 518, 521; Robbins v. Taxing District, 13 L. ed., 304; Machine Co. v. Cage, 100 U. S., 676, 25 L. ed., 754; Robbins v. Taxing District, 120 U. S., 489, 497, 498, 30 L. ed., 694, 697; Emert v. Missouri, 156 U. S., 309, 311, 312, 316, 319, 39 L. ed., 433, 434, 436, 437. 2. Peddlers of maps selling to individuals alone, pay what tax. — Peddler of maps selling to individuals alone, and not to public school officials or for use in schools, is not subject to the privilege tax im- posed upon peddlers of patent school apparatus, maps, charts, and other articles, but is subject to the tax imposed upon peddlers for profit. Opinion of Attorney-General Cates. PHONOGRAPHS. (See Machines.) PHOTOGRAPHERS. (See Artists and Photographers.) PLAYING CARDS. Wholesale dealers, each, per annum $ 20 00 Retail dealers, each, per annum 5 00 PLUMBERS AND GAS FITTERS. In cities, towns, or taxing districts of 35,000 inhabit- ants or over, each, per annum $ 20 00 In cities, towns, or taxing districts of from 10,000 to 35,000 inhabitants, each, per annum LS 00 In cities, towns, or taxing districts of from 5,000 to 10,000 inhabitants, each, per annum 10 00 In cities, towns, or taxing districts of under 5,000 in- habitants, each, per annum 5 00 In addition, they shall pay tax as other merchants. The above tax shall be paid by gas and water compa- Revenue Law and Rate of Taxation. 57 nies doing a plumber's business ; provided, that plumbers and gas fitters paying this tax shall not be liable for a merchant's privilege tax. POOL TABLES. (See Games.) PRESSING AND DYEING ESTABLISHMENTS. (See this subject, ante, p. 34.) RANGES AND CLOCKS. Each company, firm, or corporation selling or deliver- ing ranges or clocks in this State, either in person or through agents or consignees, and all persons who engage in the business of delivering ranges or clocks, shall pay a privilege tax in counties of 35,- 000 inhabitants or over, each, per annum $ 25 00 In counties of from 20,000 to 35,000 inhabitants, each, per annum 20 00 In counties of less than 20,000 inhabitants, each, per annum T 15 00 Provided, that no privilege tax for selling ranges and clocks shall be required of any merchant either act- ing as agent or carrying as a part of his stock ranges and clocks on which he has pa'd a mer- chant's privilege and ad valorem tax and the same are sold at his established place of business. REAL ESTATE DEALERS AND AGENTS AND LAND COMPANIES DOING A REAL ESTATE BUSINESS. In cities, taxing districts, or towns of | and | over 50.- 000 inhabitants $ 25 00 In cities, taxing districts, or towns of 35.000 inhabit- ants and under 50,000, each agent, per annum. ... 20 000 In cities, taxing districts, or towns of [and] from 20,000 inhabitants to [less than ] 35,000 inhabitants, each, per annum 1 5 00 in cities, taxing districts, or towns of [and] from 10,000 to [less than] 20,000 inhabitants, each, per annum 10 00 58 Tennessee Tax Digest. In cities, taxing districts, or towns of less than 10,000 inhabitants, each, per annum 5 00 In counties outside of cities, towns, or taxing dis- tricts, each, per annum 5 00 Every person who solicits or endeavors to make sales or rent property, on commission or otherwise, shall be liable for the above tax, unless they are members of the real estate firms who have paid the tax and their name appears in the license. 1. Real estate agent is entitled to commissions, when. — Real estate agent is entitled to commissions for sale where he produces a person who ultimately becomes a purchaser directly from the owner. Ar- rington v. Gary, 5 Bax., 609; Royster v Mageveney, 9 Lea, 148; Parker V. Walker, 2 Pickle, 571; Glascock v. Vanfleet, 16 Pickle, 605, 606 (but one of several brokers completing the sale is entitled to commissions). Agent is entitled to commissions when a valid sale is effected. Parker V. Walker, 2 Pickle, 566, and citations. Agent is entitled to commis- sions when a purchaser is procured, though the sale is not consum- mated, and though the commissions were to be paid out of the pur- chase price. Gheatham v. Yarbrough, 6 Pickle, 11 , and citations. Agent is entitled to commissions for sale effected without notice of previous sale. Woodall v. Foster^ 7 Pickle, 195, and citations. 2. Real estate agent is not entitled to commissions, when. — Real estate agent is not entitled to commissions for sale where purchase was made from the owner, though the purchaser's attention was called to the property by the newspaper advertisement of the agent. Gharl- ton V. Wood, 11 Heis., 19; Nance v. Smyth, 10 Gates, . Gommis- sions disallowed for parol sale, when. Gilchrist v. Parker, 2 Pickle, 583. No commissions without a license. Stevenson v. Ewing, 3 Pickle, 46. and citations; Manufacturing Go. v. Draper, 19 Pickle, 264; Watterson v. Nashville, 22 Pickle, 414; Pile v. Garpenter, 10 Gates, . No commissions for first talking to a purchaser where sale is made by another agent, when. Glascock v. Vanfleet, 16 Pickle, 603, and citations. 3. Real estate agent is, in the absence of a special contract, entitled to the usual and customary commissions. — Without special contract as to the amount of compensation, a real estate agent will be entitled to such reasonable commissions for sale as, for similar services, real estate agents in that particular locality are by usage and custom enti- tled to receive. Arrington v. Gary, 5 Bax., 611. Revenue Ijaw and Rate of Taxation. 59 RESTAURANTS AN D CA^FfeS . (Same as hotels, on each room, in addition, as follows:) In cities, towns, or taxing districts of 35,000 inhabit- ants or over, each, per annum $ 40 00 ^ In cities, towns, or taxing districts of [and] from 20,000 to [less than] 35,000 inhabitants, each, per annum 30 00 In cities, towns, or taxing districts of [and] from 10,000 to [less than] 20^300 inhabitants, each, per annum 25 00 In cities, towns, or taxing districts of [and] from 6,000 to [less than] 10,000 inhabitants, each, per annum . 20 00 — In cities, towns, or taxing districts having less than 2,000 inhabitants, each, per annum 3 00 — In counties not in towns, cities, or taxing districts, each, per annum 3 00 This shall include all places where meals are served at table. By this statute there is no tax on restaurants and cafes in cities, towns, and taxing- districts of 2,000 inhabitants and over and under 6,000 inhabitants, while the tax applies in cities, towns, and taxing dis- tricts of less than 2,000 and of more than 6,000 inhabitants. This ex- emption is, doubtless, a mere oversight and omission; but such ex- emption is arbitrary and vicious, and may for that reason render the tax on restaurants and cafes unconstitutional and void as arbitrary cind vicious class legislation. See Sutton v. State, 12 Pickle, 696, 706- 710, and citations; Harbison v. Iron Co., 19 Pickle, 434; Weaver v. Davidson Co., 20 Pickle, 328, 331, 333; Redistricting Cases, 3 Cates, 273, 277, 284, 285. However, the rest of the statute as to all matters other than res- taurants and cafes is not affected by the invalidity of this particular provision. See Bouldin v. Lockhart. 3 Bax., 262, 279-281; Tillman v. Cocke, 9 Bax., 429, 432; State, ex rel, v. Wilson, 12 Lea, 246, 254; FrankHn Co. v. Railroad, 12 Lea, 521, 531, 532, 552 (the last in the dis- senting opinion); Ballentine v. Pulaski, 15 Lea, 633, 648; Burkholtzv. State, 16 Lea, 71, 73, 74; Dugger v. Insurance Co., 11 Pickle, 245, 260, 261; Levee District v. Dawson, 13 Pickle, 151, 179; State v. Scott, 14 Pickle, 254, 262; State, ex rel., v. Cummins, 15 Pickle, 667, 682; Jones V. Memphis, 17 Pickle, 188, 195; Austin v. State, 17 Pickle, 563, 579; Lindsay v. Allen, 4 Cates, 647; State, ex rel., v. Trewhitt, 5 Cates, 572; Fite V. State, ex rel., 6 Cates, 646, 659. 6o Tennessee Tax Digest. SECURITY DEALERS AND LOAN AGENTS. In counties of 50,000 inhabitants or over, each, per annum $ 50 00 In counties of from 30,000 to 50,000 inhabitants, each, per annum 25 00 In counties of from 15,000 to 30,000 inhabitants, each, per annum 10 00 In counties of less than 15,000 inhabitants, each, per annum • 5 00 1. Shaving notes, accounts, judgments, or evidence of indebtedness, including loans or mortgages, is here- by classed and held to be dealing in securities. 2. The business of loaning or advancing money on salaries, furniture, or household goods, or other personal chattel, as a security, whether the security be by mortgage or sale, is hereby classed and held to be dealing in securities. 3. Dealers in securities, as heretofore declared, shall not apply to real estate dealers or merchandise brokers and agents paying a privilege tax as such. 1, Shaving notes and other evidences of indebtedness means buy- ing them at a discount. — Shaving notes, accounts, judgments, or evi- dences of indebtedness means simply the purchasing of such evidences of indebtedness at a discount, v^rithout reference to the question whether any of such securities were created for the purpose of being discounted. Trentham v. Moore, 3 Gates, 346, 351, citing and distin- guishing Wetmore v. Bradley, 3 Head, 726, 727, 728. See Williams v. Brasfield, 9 Yer., 272. 2. Buying a single note is not taxable, when. — Where a person not holding himself out to the public, directly or indirectly, as a dealer in securities, casually buys a single note, without seeking the transaction, he is not subject to the privilege tax. for shaving notes. Trentham v. Moore, 3 Gates, 346. SEWING MACHINE COiMPANIES AND DEALERS IN. (In lieu of all other taxes, except merchant's privi- lege and ad valorem tax.) Each company, firm, or corporation selling sewing machines in this State through agents, and every wholesale or retail dealer in sewing machines sell- ing sewing machines in this State, either as local Revenue Law and Rate of Taxation. 6i agents or as part of their merchanside stock, unless the manufacturer of such sewing machines so sold by such merchant has paid the tax thereby im- posed, shall each pay to the comptroller, per an- num, $200; and upon the payment of said tax of $200 by any manufacturer, it shall be the duty of the comptroller to immediately notify the various county court clerks of such payment, and said clerks shall preserve and keep on file in their offi- ces said notices : and, in addition to the tax herein imposed, each company, firm, or corporation shall pay to the comptroller five dollar s ($5) per annum for each agi ent which it employs in the sale of its machines within this State ; but this tax of five dol- lars ($5) shall not apply to merchants of this State who carry sewing machines as a part of their stocks of merchandise, and selling at their regular place of business, and not selling by or through agents. The tax herein imposed shall be paid direct to the State comptroller, whose duty it shall be to issue to such company, firm, or corporation a certificate, signed by him in his ofiBcial capacity, showing the payment of said taxes, and which shall be author- ity to said company, .firm, or corporation and its agents to sell sewing machines of such company, firm, or corporation within this State for one year. No privilege tax for selling sewing machines shall be required of any merchant either acting as agent or carrying as a part of his stock sewing machines made by any company, firm, or corporation that has paid said tax of two hundred dollars ($200). The privilege tax hereby imposed shall be in lieu of all other taxes, except merchant's privilege and ad valorem tax. 1. Tax on peddling is a privilege, and not tax on articles, and no*- an interference with interstate commerce. — A tax on the peddlinsf of 5.e\ving machines was held to be a tax upon the business as a privilege, and not upon the article in specie, which applied alike to sewing ma- chines manufactured in the State and out of it; so it was not an at- tempt to regulate interstate commerce, and was valid, and not repug- nant to the constitution of the United States. Machine Co. v. Cage, 9 Bax., 518, 521 ; 100 U. S., 676, 25 L. ed., 754. In this case the ma- chines were made in another State, but were sent to this State to be 62 Tennessee Tax Digest. sold, and, therefore, had become part of its general property, and amen- able to its laws. Robbins v. Taxing District, 13 Lea, 304; 120 U. S., 489, 497, 498, 30 L. ed., 694, 697; Emert v. Missouri, 156 U. S., 309, 311, 312, 316, 319, 39 L. ed., 433, 434, 436, 437. 2. Selling machines of and in other States here, by samples, is inter- state commerce, and not taxable. — But where sewing machines manu- factured m other States are sold in this State by samples before they are brought here, it is interstate commerce, and to this extent this statute is invalid and repugnant to the constitution of the United States, as an attempted regulation of interstate commerce. Robbins V. Taxing District, 120 U. S., 489, 30 L. ed., 697; Hurford v. State, 7 Pickle, 669; State v. Scott, 14 Pickle, 261, 262; Croy v. Obion Co., 20 Pickle, 525 (involving a transaction that does not constitute interstate commerce, because not in original packages and because the seller was acting for himself, and not as agent for a nonresident manufacturer and owner of goods in another State). 3. Brokers selling as such, and not for nonresident principals, sub- ject to tax. — But where a resident merchandise broker negotiates sales between resident and nonresident merchants of goods situated in other States, it is not necessarily interstate commerce, and the business may be taxed as a privilege. It would be otherwise, if he had simply transacted business for nonresident principals. Ficklin v. Shelby Co. Taxing District, 145 U. S., 1-28, 36 L. ed., 601; Memphis v. Carring- ton, 7 Pickle, 511, 514; Hurford v. State, 7 Pickle, 669, 674; Stockard V. Morgan, 21 Pickle, 414; 185 U. S., 27, 46 L. ed., 785. SKATING RINKS. In cities, towns, or taxing distritts of 20,000 inhabit- ants or over, each, per annum $ 30 00 In cities, towns, or taxing districts of [and] from 10,000 to [less than] 20,000 inhabitants, each, per annum 1 5 00 In cities, towns, or taxing districts of [and] from 5,000 to [less than] 10,000 inhabitants, each, per annum 10 00 In cities, towns, or taxing districts of less than 5,000 inhabitants, each, per annum 5 00 In counties outside of cities, towns, villages, or tax- ing districts 5 00 SODA FOUNTAINS. In cities, towns, and taxing districts of over 30,000 inhabitants, each, per annum 5 00 Revenue Law and Rate of Taxation. 63 In cities, towns, and taxing districts under 30,000 inhabitants, each, per annum 2 50 STOCK YARDS, STOCK PENS, ETC. (This shall not apply to livery stables already paying privilege taxes.) Stock yards, stock pens, feed or sale stables having stock pens in connection with their business, shall pay a privilege tax of o iie dollar jB gr P^rt of_ foj,ir liuii^Ted^£uaTe__feet^(in calculating the number of pens, the surface covered by pens shall be consid- ered, counting each four hundred square feet as a pen). STREET CAR COMPANIES AND DUMMY RAILROADS. In cities, towns, or taxing districts of 60,000 inhabit- ants or over, or adjacent thereto, each track, per mile, per annum $ 10 00 In cities, towns, or taxing districts of [and] from 20,000 to [less than] 60,000 inhabitants, or adjacent thereto, each track, per mile, per annum 8 00 In cities, towns, or taxing districts of [and] from 10,000 to [less than] 20,000 inhabitants, or adjacent thereto, each track, per mile, per annum 6 00 In cities, towns, or taxing districts of less than 10,000 inhabitants, or adjacent thereto, each track, per mile, per annum ...» 3 00 Provided, that any such company selling light to con- sumers for lighting, heating, or power purposes, or which has been consolidated with an electric light company, and is so selling light or heat or power, shall, in addition to this tax, pay the tax herein as- sessed against electric light companies. TENPIN ALLEYS. (See Games.) THEATERS. In cities, taxing districts, or towns of 40,000 inhabit- ants or over, each, per annum $ 200 00 64 Tennessee Tax Digest. In cities, taxing districts, or towns of [and] from 20,000 to [less than] 40,000 inhabitants, each, per annum (not to be taken out for less than twelve months) 100 00 In cities, taxing districts, or towns of [and] from 10,000 to [less than] 20,000 inhabitants, each, per annum (not to be taken out for less than twelve months) 50 00 In cities, taxing districts, or towns of [and] from 5,000 to [less than] 10,000 inhabitants, each, per annum (not to be taken out for less than twelve months) 25 00 In cities, towns, or taxing districts of [and] from 3,000 to [less than] 5,000 inhabitants, each, per annum (not to be taken out for less than twelve months) 15 00 In cities, taxing districts, or towns of less than 3,000 inhabitants, each, per annum (not to be taken out for less than twelve months) 10 00 In counties outside of cities, towns, or taxing dis- tricts (not to be taken out for less than six months) 50 00 Theaters run in public parks in counties of more than 100,000 inhabitants and not charging more than 25 cents for any performance, each, per annum 100 00' In counties of [and] from 50,000 to 100,000 [inclu- -^ sive] inhabitants and not charging more than 25 cents for any performance, each, per annum 50_00 1. If owners or lessees of theater are licensed, companies hired to furnish entertainments need not be. — Where the proprietors or les- sees are licensed to keep or run a theater, the companies hired by them to give the entertainments are not liable to an additional tax; and these entertainments are not confined to the pure drama, but may include negro minstrel performances. Taxing District v. Emerson, 4 Lea, 312. 2. Theatrical entertainments include negro minstrel performances. — Theatrical entertainments are not confined to the pure drama, but may include negro minstrel performances, and a minstrel troupe may give its performances in a theatrical establishment licensed as a theater without additional license. Taxing District v. Emerson, 4 Lea, 312, 314, 315. Revenue Law and Rate of Taxation. 65 TRANSFER BUSINESS FOR_HIRE. (This shall apply to companies or individuals operat- ing hacks, carriages, or wagons for hauling freight or passengers, and not paying a livery, feed, or sale stable license.) ■ . For each horse, per annum $ 1 00' 1. Hauling must be done as a business to make one subject to the tax. — The question as to who is liable for this tax depends upon whether the person operating the hack, carriage, or wagon for haul- ing freight or passengers is making a business of it or is engaged in the hauling as a vocation. If he is so engaged, he is subject to the tax; if he is not so engaged, there is no privilege being exercised by him which subjects him to the tax. Farmers who, after they have laid by their crops, or at various times, do hauling for their neighbors, and parties who own wagons and use them in their own business, and at different times do hauling for other parties, are not subject to this tax. Opinion of Attorney-General Gates and GomptroUer Dibrell. 2. Owner not liable for privilege exercised by hirer. — The owner of the vehicle is not liable for the privilege tax where he simply hires it to another person who exercises the privilege. Hagan v. Hardie, 8 Heis., 812. TURNPIKES. Each tollgate that collects toll both ways the same day in counties of 50,000 inhabitants or over, each, per annum $ 50 00 Each tollgate that collects toll both ways the same day in counties of 30,000 inhabitants and not over [" under " instead of " not over "] 50,000 inhabit- ants, each, per annum 40 00 Each tollgate that collects toll both ways the same day in counties of less than 30,000 inhabitants, each, per annum 12 50 Provided, this shall not be construed to allow any turnpike company to collect more than one fare for both ways the same day, unless the charter of in- corporation provides for and permits such greater charge. Any corporation or turnpike , company which in- creases its tolls for one way beyond what those tolls now are shall pay a privilege tax for each gate, per annum 250 00 3 66 Tennessee Tax Digest. This tax constitutional. — The privilege tax on each turnpike tollgate that collects toll for both ways is constitutional and valid. Turnpike Cases, 8 Pickle, 369. The business of collecting " tolls both ways " is not the thing privileged and taxed, but this is only the means of identifying the class of turnpike companies whose business, occupa- tion, or pursuit is to be taxed. Railroad v. Harris, 15 Pickle, 703, 705, 706, 707. UNDERTAKERS. In cities, towns, or taxing districts of 50,000 inhabit- ants or over, each, per annum $ 50 00 In cities, towns, or taxing districts of from [read " above " instead of " from "] 20,000 to [less than] ' 50,000 inhabitants, each, per annum 30 00 In cities, towns, or taxing districts of from [read " above " instead of " from "] 10,000 to 20,000 in- habitants, each, per annum 20 00 In cities, towns, or taxing districts of from [read " above " instead of " from " ] 6,000 to 10,000 in- habitants, each, per annum 10 00 In cities, towns, or taxing districts of 6,000 or under. . 5 00 In any county in the State outside of cities, towns, or taxing districts, each, per annum 5 00 A merchant is not an " undertaker," when. — The term " undertaker " has not received any judicial construction by our supreme court; but in the absence of an express declaration by statute, a merchant who merely carries in stock for sale to his customers some things which are usually termed '* undertaker's supplies," or things necessary or which may be used in connection with preparing a body for interment, without having in charge or managing or controlling funerals, is not an " undertaker," and, therefore, not liable to the privilege tax imposed upon undertakers by the above statute. Opinion of Attorney-General Gates. VARIETY THEATERS. Each, per annum $ 200 00 WAREHOUSES AND ELEVATORS. In cities, towns, or taxing districts of 8,000 inhabit- ants or over, each, per annum $ 50 00 In cities, towns, or taxing districts under 8,000 inhab- itants, each, per annum 25 00 Revenue Law axd Rate of Taxation. 67 This shall cover all taxes for the selling of produce or other aticles stored in the wrarehouses of such ware- housemen, but shall not be so construed as to ex- empt commission merchants from taxation as pro- vided by law^. WAREROOMS OR \^LAR-EHOIJSES FORJTH E STOR- AGE OF FlIRJSaTURE-AIiD'ttetfSE- ^^ HOLD EEFECTS. Warehouses or warerooms in cities, tow^ns, or taxing districts of 8,000 inhabitants or over, each, per an- num $ 25 00 Less than 8,000 inhabitants 15 00 In counties of over 30,000 inhabitants (computed by the federal census of- 1900 or any subsequent fed- eral census), outside of cities, tov^ns, and taxing districts, each, per annum 25 00 See Storage and Warehouse Companies, post, p. 73. WATER COMPANIES. In cities, taxing districts, or towns of 50,000 inhabit- ants or over, each, per annum $ 800 00 In cities, taxing districts, or towns of [and] from 35,000 to I less than] 50,000 inhabitants, each, per annum . 600 00 In cities, taxing districts, or towns of [and] from 20,000 to [less than] 35,000 inhabitants, each, per annum 400 00 In cities, taxing districts, or towns of [and] from 6,000 to [less than] 20,000 inhabitants, each, per annum 100 00 In cities, taxing districts, or towns of less than 6,000 inhabitants and under, each, per annum 10 00 This tax shall apply to water companies, firms, or in- dividuals furnishing water to towns, cities, or tax- ing districts, whether the plant be located within or without the corporate limits of said city, town, or taxing district. This tax shall not apply to munici- pal corporations owning and operating water- works. 68 Tennessee Tax Digest. Exemption of municipal corporations. — Before this express exemp- tion of municipal corporations from taxation on waterworks owned and operated by them, it was held that they were exempt by implica- tion under a statute neither expressly exempting them nor expressly taxing them in a statute imposing a privilege tax upon water compa- nies. See Nashville v. Smith, 2 Pickle, 213; Smith v. Nashville, 4 Pickle, 464; Church v. Hinton, 8 Pickle, 196. Therefore, it is concluded that this exemption of municipal corporations from the privilege tax imposed upon water companies is valid. WILD WEST SHOWS. (See this subject, ante, p. 35.) PRIVILEGE TAXES PAYABLE TO COMPTROLLER. Sec. 5. Privilege taxes against certain corporations. — It is hereby declared to be a privilege for any of the corporations hereinafter named in this section to do business or operate in this State, and the rate of taxation on such privilege shall be as hereinafter fixed, which privilege tax shall be paid di- rectly to the comptroller of the treasury of the State. EXPRESS COMPANIES. (In lieu of all other taxes, except ad valorem tax.) If the lines are less than one hundred miles for one or more packages other than interstate, taken up at • one point in this State and transported to another point in this State and transported wholly within this State, per annum .$1,000 00 If the lines are more than one hundred miles long for one or more packages other than interstate, taken up at one point in this State and transported to an- other point in this State and transported wholly within this State, per annum $2,500 00 1. Railroad liable as express company, when. — A railroad company which carries on an express business is liable for the privilege tax imposed by statute on express companies. Railroad v. State, 9 Lea, 218. 2. Taxation of their wagons not allowed. — The privilege of doing business as an express company includes the privilege of operating such wagons and other vehicles as may be essential to the orderly and Privilege Taxes Payable to Comptroller. 69 efficient dispatch of that business; and a privilege tax imposed on that business as a unit covers the right to operate those necessary vehicles, though the running of vehicles be taxed as a privilege in another clause of the same statute, unless it appears that the legislature intended to impose the additional tax on express companies for operating such vehicles. Memphis v. Express Co., 18 Pickle, 336, 343, 344. 3. Cities cannot tax the privilege. — Municipal corporations cannot collect a privilege tax on express companies under the provisions of this law, and any existing provision by statute or ordinance imposing such tax on behalf of the municipality is repealed thereby. Memphis V. Express Co., 18 Pickle, 336, 339-341. 4. License cannot be required of express agent by the State where he does any interstate business. — State statute requiring the agent of a foreign express company to take a State license before doing busi- ness is unconstitutional, where a part of the business done by the agent is interstate business. Crutcher v. Kentucky, 141 U. S., 47, 35 L. ed., 649. 5. Tax on the business of express companies is not a tax on inter- state commerce, when. — A tax on the business of an express company done within the State is not a tax upon interstate commerce, although the company is also engaged in business between the States. Ex- press Co. V. Seibert, 142 U. S., 339, 35 L. ed., 1035; Osborne v. Florida, 164 U. S., 650, 41 L. ed., 586. NEWS COMPANIES. (In lieu of all other taxes, except ad valorem tax.) For doing business other than interstate, per annum. $ 750 00 RAILROAD COMPANIES. (In lieu of all other taxes, except ad valorem tax.) (Not paying ad valorem tax.) Each railroad company not paying an ad valorem tax to this State and operating or controlling a railroad in this State for taking up and transporting freight or passengers from one point in this State to an- other point in this State, shall pay annually, for each mile of railroad so operated or controlled in this State, a privilege tax of $ 120 00 This tax shall not apply to any railroad exempt by legislative contract of the State from the payment of privilege tax; provided, that any railroad com- 70 Tennessee Tax Digest. pany to which the foregoing privilege tax would attach or apply shall be relieved and released from the payment of the same by obligating itself to pay to the comptroller of the State, in lieu of all other taxes, $4,500 annually for the term of ten years, beginning with the year 1899 and ending on January 1, 1909; and which shall agree and con- tract that thereafter the property and franchise of such railroad or railway company shall be liable and subject to ad valorem taxation on the same basis as is imposed on other railroad property, waiving at the expiration of said ten years all char- ter exemptions as to ad valorem taxation ; and shall agree that any litigation now pending in any of the courts of the State of Tennessee or of t'he United States, the purpose of which is to prevent or re- strain the enforcement of the collection of privi- lege taxes on such railroads or to recover money already paid for such privilege taxes, shall be dis- missed at the cost of such railroad company. And the governor and comptroller of the State are here- by authorized, empowered, and directed, as the rep- resentatives of and for and on behalf of the State, to make and execute a contract, according to the terms and provisions hereinbefore set out, with any railroad company to which the same shall apply and which shall profess a willingness to enter into such contract ; but in the event such contract is not consummated as herein provided, the privilege tax - herein provided for shall remain in full force. 1. Privilege tax on railroads. — A privilege tax may be imposed on railroads not paying an ad valorem tax, and by demanding and receiv- ing the privilege tax, the State is estopped to deny exemption from ad valorem tax. Railroad, v. Harris, 15 Pickle, 684, 688-691, 702, 705; Harkreader v. Turnpike Co., 17 Pickle, 684; Breyer v. State, 18 Pickle. 106; Harbison v. Iron Co., 19 Pickle, 434, 438; State, ex rel., v. Brew- ing Co., 20 Pickle, 732, 737; Carroll v. Alstip, 23 Pickle, 268. And the tax does not affect interstate commerce, when. Railroad v. Harris, 15 Pickle, 687, 709-712.. 2. Transportation is commerce. — Transportation is essential to commerce, and cannot be regulated or taxed by the State as to inter- state business. Railroad v. Husen, 5 Otto, 95 U. S., 465, 24 L. ed., 527. Privilege Taxes Payable to Comptroller. 71 3. State cannot require license for doing interstate commerce. — A State law which requires a party to take out a license for carrying on interstate commerce business is unconstitutional and void. Crutcher V. Kentucky, 141 U. S., 47, 35 L. ed., 649; Railroad v. Pennsylvania, 136 U. S., 114, 34 L. ed., 394: Harmon v. Chicago, 147 U. S., 396, 37 L. ed., 216. V 4. Soliciting of interstate passenger traffic cannot be taxed by a city. — The soliciting of passenger traffic out of one State into and through other States is interstate commerce and cannot be taxed or restricted by a municipal corporation. McCall v. California, 136 U. S., 104, 34 L. ed., 391. RAILROAD TERMINAL COMPANIES. In counties of 90,000 inhabitants or over, each, per annum $ 750 00 In counties of from 70,000 to 90,000 inhabitants, each, per annum 500 00 In counties of from 50,000 to 70,000 inhabitants, each, per annum 400 00 1. Discrimination graduated on population of counties. — Discrimi- nation in amount of privilege tax, graduated according to the popula- tion of the city or town, is valid and constitutional (State v. Schlier, 3 Heis., 281, 285, 286; Fulgum v. Nashville, 8 Lea, 639, 640; Vosse v. Memphis, 9 Lea, 298; Robbins v. Taxing District, 13 Lea, 304, 307; Stratton v. Morris, 5 Pickle, 524; State v. Alston, 10 Pickle, 683); and, by analogy, the same rule would be good as to counties. — Ed. 2. Corporation for convenience, and not profits, organized for rail- roads owning the stock, is subject to this tax. — A corporation char- tered under the name of the Chattanooga Station Company *' for the purpose," as shown by the charter, " of acquiring, constructing, main- taining, operating, or leasing to others, railroad terminal facilities for the accommodation of railroad passengers, and for handling and transferring railroad freight in and about the city of Chattanooga," etc., is manifestly chartered for the purpose of carrying on the busi- ness, of a railroad terminal company within the meaning af this stat- ute; and it is subject to the privilege tax imposed by this statute upon railroad terminal companies whenever it is in operation in carrying on the business of a railroad terminal company, notwithstanding the extraneous fact that the corporation was organized for convenience, and not profit, by- the railroads using it, and to show the propor- tional ownership in the property, and also to more equitably divide the expense of operation. Opinion of Attorney-General Cates. 72 Tennessee Tax Digest. SLEEPING CAR COMPANIES. (In lieu of all other taxes, except ad valorem tax.) Each company doing business in this State for one or more persons other than interstate, taken up at one point in this State and delivered to another point in this State and transported wholly within this State, per annum $3,000 00 1. Cannot be taxed on interstate business, but may when wholly within State. — Sleeping cars cannot be taxed for doing an interstate business, but may be taxed when run wholly within the State. Pick- ard V. Pullman Southern Car Co., 117 U. S., 34, 29 L. ed., 785; Ten- nessee V. Pullman Southern Car Co., 117 U. S., 51, 29 L. ed., 791. 2. How it is where business is mixed. — But where sleeping car companies transport passengers from points in this State to other points in it, but the number of such passengers bears an inconsiderable proportion to the passengers transported from other States into or across this State, and from points in it to points in other States, a specific privilege tax imposed by the legislature upon each sleeping car so employed or used in such transportation is unconstitutional and invalid, because it is an attempt to regulate interstate commerce. Pickard V. Pullman Southern Car Co., 117 U. S., 34, 41, 29 L. ed., 785, 788. 3. Statute changed to obviate decisions. — This statute does not in terms tax the interstate business, but in effect it may do so. This provision or change was made to obviate the decisions of the court given above. 4. But the point of change not decided. — But the direct question, as presented in this statute, whether the business done wholly within the State by sleeping car companies doing also an interstate business may be taxed, when the interstate business is expressly excepted and exempted, did not arise in this case, and was, therefore, not decided. — Ed. 5. May be taxed on business within the State, if expressly limited to such business. — But under the decisions as to express companies, sleeping car companies may be taxed as provided in this statute on business done within the State when expressly so limited. See note 5 under the head of Express Companies, ante, p. 69. Privilege Taxes Payable to Comptroller. 73 STORAGE AND WAREHOUSE COMPANIES. Other than those owning and operating warehouses and elevators. (In Heu of all other taxes, except ad valorem tax.) >-^ Persons, firms, or corporations issuing storage or warehouse receipts on goods, wares, merchandise, or other products, to be delivered to and used by ^ the owner of the property, shall pay direct to the comptroller, in lieu of all other privilege taxes, two and one-half (2^4) per cent, on the gross premium receipts in this State, payable semiannually — Janu- ary and July — on sworn returns showing the gross premiums received in this State on business done in this State for each six (6) months, ending on De- cember 31 and June 30 of each year. See Warehouses, etc., ante, p. 66. TELEGRAPH COMPANIES. (In lieu of all other taxes, except ad valorem tax.) Telegraph companies operating miles of telegraph wire in this State for one or more messages sent from one point in this State and transmitted wholly within this State and not sent in the service of the United States government per annum, as follows : (1) From 25 to [and including] 100 miles of tele- graph wire $ 20 00 (2) From [over] 100 to [and including] 300 miles of telegraph wire 200 00 (3) From [over] 300 to [and including] 1,000 miles of telegraph wire 700 00 (4) For additional miles of telegraph wire over 1,000 at the following rates : (a) For the first 5,000 miles over 1,000 miles or any fractional part thereof, for each 100 miles of wire or fractional part thereof 20 00 (b) For each additional 100 miles of wire, or fuac- tional part thereof, over 6,000 miles 10 00 1. Telegraph subject to interstate regulations. — The power vested in congress to regulate commerce with foreign nations and among the several States includes control of the telegraph as an agency of commerce. Telegraph Co. v. Telegraph Co., 96 U. S., 1, 24 L. ed., 708. 74 Tennessee Tax Digest. 2. Liability for ad valorem tax. — They are liable for the ad valorem tax as well as the privilege tax. Telegraph Co. v. State, 9 Bax., 509. See Code, sees. 857-859. 3. License tax imposed generally on telegraph companies is void as against those doing interstate business. — A general license tax on a telegraph company doing business in different States affects its entire business, interstate as well as domestic, and is unconstitutional. Le- loup V. Mobile, 127 U. S., 640, 32 L. ed., 311. 4. License fee may be required of telegraph company when con- fined to business within the State, when. — A license fee may be re- quired of telegraph companies or agencies for business done exclu- sively within the State, if expressly limited to such business, and not including interstate business or business done for the government, its officers, or agents. Telegraph Co. v. Charleston, 153 U. S., 692, 38 L. ed., 871. 5. Statute taxes for messages within the State alone. — This statute does not impose a tax upon interstate business, but is expressly lim- ited to companies sending messages within the limits of the State. TELEPHONE COMPANIES. (In lieu of all other taxes, except ad valorem tax.) In counties of 40,000 population and over, on each box or instrument $ 50 In counties of less than 40,000 population and over 20,000, on each box or instrument 30 In counties of less than 20,000 inhabitants, on each box or instrument 20 Mutual cooperative telephone companies not run for profit are not liable for this tax. TRADING STAMP COMPANIES, AND MERCHANTS ISSUING TRADING STAMPS. Each trading stamp company or agency doing busi- ness by the sale or giving away of trading stamps or like devices in any county of this State shall pay, per annum, in each county in which such company or agency does business, a privilege tax of $ 500 00 All persons, firms, corporations, agents, or merchants engaged in business or dealing in merchandise by or through the method known as trading stamps or like devices shall pay, per annum, a privilege tax of 250 00 UNIVERSITY OF. Privilege Taxes Payable to Comptroller. 75 Provided, that this tax shall not apply to any mer- chant or manufacturer who shall issue and place his own tickets, coupons, or other vouchers in or with packages of goods sold or manufactured by him, such tickets or coupons to be redeemed by such merchant or manufacturer; nor to any mer- chant who shall call or give out with such pack- ages, tickets, coupons, or vouchers issued and re- deemable only by the manufacturer of the goods sold. INSURANCE PRIVILEGE TAXES PAYABLE TO COMMIS- SIONER OF INSURANCE. Sec. 6. Rate against what companies; exemption of what companies. — All foreign insurance companies shall, as here- inafter designated, pay direct to the insurance commissioner the following taxes, which shall be in lieu of all other privi- lege taxes, viz. : Fire _ariil-aHr-etJi£iLinsura nce co rporations or companies of other States and foreign countries, except life insurance cor- porations or companies, shall pay two a nd o ne-half pe£ cent, on gross premiums paid by or for policy holders residing in this State or on property in this State, an d life insura nce cor- porations_gr_campanies of other States or foreign countries shall pay tv^(0_^nd nne-half per cent, on gross premium receipts in this State, payable semiannually — January and July — on sworn returns ; and life corporations of other States and for- eign countries ceasing to transact new business in this State shall continue to pay the tax herein provided on business in force and until the same be terminated. ^Assessment, life, and casualty corporations organized under the laws of other States or foreign countries shall pay two and one-half per cent, on gross premiums paid by or for policy holders residing in this State or on property in this State, payable semiannually — January and July — direct to the insurance commissioner, on sworn returns, showing gross premiums paid by or for policy holders residing in this State or on property in this State for each six months, ending on December 31 and on June 30 of 76 Tennessee Tax Digest. each year; and assessment life corporations ceasing to trans- act new business in the State shall continue to pay the tax- herein provided on business in force and until the same be ter- minated.* Provided, hov^ever, that the act shall not apply to purely fraternal orders or societies. Provision to obviate decision. — *The provision between the stars, as well as that contained in Acts 1901, ch. 151, and Acts 1903, ch. 257, sec. 6, expressly taxing foreign companies, which have ceased to do new business within this State, upon the business in force until the same is terminated, was made for the purpose of obviating the de- cision in the case of the State v. Insurance Co., 22 Pickle, 282, in con- struing the previously existing statutes. The statute does not apply to companies that had ceased to transact new business in the State previous to its enactment. State v. Insurance Co., 22 Pickle, 282, 333, 334. • See, also, Acts 1903, ch. 442, compiled under sees. 3292 and 3302, p. 533, of the Code Supplement (1904). Sec. 6a. Agents' tax to be paid to insurance commissioner, except when delegated to the comptroller. — Each insurance agent or solicitor, except those representing domestic mutual insurance companies, including each member of an agency or firm or corporation writing or soliciting insurance in this State, shall pay an annual State tax in lieu of all other privilege taxes on the following basis : Agents engaged in business or commencing business between January 1 and April 1 of each year $ 10 00 Agents commencing business between April 1 and July 1 of each year 7 50 Agents commencing business between July 1 and Oc- tober 1 of each year 5 00 Agents commencing business after October 1 2 50 All payments to be made to the end of each calendar year; this tax to be paid direct to the insurance commissioner, except when he delegates the power to collect the same to the comptroller. BUILDING AND LOAN ASSOCIATION TAXES PAYABLE TO STATE TREASURER. Sec. 7. Privilege tax in lieu of all other taxes. — Every build- ing and loan association incorporated and organized under the Privilege Taxes Payable to Comptroller. 77 laws of this State shall pay to the treasurer direct a specified privilege license tax in lieu of all other taxes upon its capital actually paid in, whether derived from installment or any other class of stock, which tax shall be paid as follows, and to be paid directly to the treasurer: CAPITAL PAID IN. Not more than $10,000 $ 20 00 [Over] $10,000, and not more than $25,000 47 00 [Over] $25,000, and not more than $50,000 95 00 [Over] $50,000, and not more than $100,000 140 00 [Over] $100,000, and not more than $150,000 187 50 '[Over] $150,000, and not more than $200,000 280 00 [Over] $200,000, and not more than $250,000 375 00 [Over] $250,000, and not more than $300,000 468 00 [Over] $300,000, and not more than $350,000 562 50 [Over] $350,000, and not more than $400,000 656 00 [Over] $400,000, and not more than $450,000 750 00 [Over] $450,000, and not more than $500,000 843 50 Each additional $100,000 or fractional part thereof. . . 92 50 Proper interpretation shown by insertion of word "over" in brack- ets before certain specified amounts. — Under a literal reading, each one of the specific suras named is put in both the higher and lower classes; but it is evident that the legislature did not intend to double tax the specified sums, which might render the whole section void, and the proper interpretation is indicated by the reading of the word " over *' before the first sum named in each line, except the first and last lines, as shown in the brackets. — Ed. Sec. 7a. Sworn return of capital. — Each association shall annually, on or before the first day of September, make a sworn return to the treasurer, showing the amount of capital of such association actually paid in as shown by its books at the close of business on the 30th day of June next preceding, and shall at the same time pay the tax as provided above. Sec. 7b. Sworn return of foreign associationsi as to capital paid by citizens of this State. — Each building and loan asso- ciation organized under the laws of any other State or Terri- tory, having stockholders in this State, shall annually, on or before the first day of September, make a sworn return to the 78 Tennessee Tax Digest. treasurer direct, showing the amount of capital paid into said association by citizens of this State upon classes of stock as shown by its books at the close of business on the 30th day of June next preceding, and at the same time pay the tax as provided above upon that part of its capital stock paid in by the citizens of the State. REALTY TRANSFER TAXES PAYABLE TO CLERK OF THE COUNTY COURT. Sec. 8. Transfer of realty taxed, and rate thereof. — On all transfers of realty there shall be levied and paid in lieu of all other taxes a State tax of $1 per $1,000 on the consideration, which shall in no case be less than the value of the property, which shall be collected by the clerk of the county court ; and the county register is hereby required not to record said deed until the clerk certifies that this tax has been paid, but no fee shall be charged for such certificate of [or] registration of the same, and such certificate need not be registered. See Code, sees. 691, 710, 967, 968. 958 (673; 804. Single tax on one tract. — If a person obtain several deeds or other conveyances for one and the same tract or parcel of land, he shall only pay one State tax on such sale. 1. This is not a privilege, but a specific tax; county levy for same. — Land sales are not taxed by the State as privileges, but a specific tax is levied on them. Therefore the levy of a tax upon privileges in general terms by the county court does not embrace a tax upon land sales. The county court has no power to create privileges. Whether the county court could levy a specific tax on transfers of land in proper terms is not determined, but reserved. Clarke v. Montague, 3 Lea, 274. 2. Purchaser to pay tax. — The purchaser of land is required by law to pay the tax imposed on sales thereof, when there is no contract as to who shall pay it. Guthrie v. Iron Co., 8 Heis., 826. 3. Deeds or contracts for standing timber are subject to the trans- fer tax. — Deeds or contracts for standing timber to be removed within a given time are subject to the transfer tax, for the reason that such interests are taxable under the assessment law as realty. Opinion Privilege Taxes Payable to Comptroller. 79 of Attorney-General Gates. See Acts 1907, ch. 602, sec. 5, subsec. 5, post, p. 119. This conclusion of the attorney-general is correct, for the further reason that by section 63 of the Gode the terms " real estate,'' '* real property," and " lands "' are defined to include lands, tenements, and hereditaments, and all rights thereto and interests therein, equitable as well as legal. Standing timber owned by one not owning the soil constitutes such a right to or interest in the land as to make the ownership of the timber real estate within this statu- tory definition. The terms defined by the statute are certainly equiv- alent to the term " realty," and include it in such definition. — Ed. 4. Court deeds conveying land are subject to the transfer tax. — The deed of a clerk and master of the chancery court conveying land to a purchaser at a chancery sale is subject to the transfer tax. Opinion' of Attorney-General Gates. If the deed of the clerk of a -court is sub- ject to the transfer tax, it would seem to follow that a certified copy of a decree of the court made for registration is subject to the trans- fer tax which must be paid before it can be registered. — Ed. 5. Partition deeds are subject to the transfer tax. — A partition deed transferring realty, although it is merely evidence of and in pursu- ance of a previously agreed partition or agreement to partition, is sub- ject to the transfer tax imposed upon all transfers of realty. Opinion of Attorney-General Gates. 6. Parties estopped to show less consideration than that stated in the deed. — Where the parties themselves fix the consideration at a certain sum paid in the bonds or notes of the conveyee, they are es- topped to claim or show that the true consideration is less, when the transfer tax is sought to be applied to the stated consideration. Opin- ion of Attorney-General Gates. 7. Clerk may determine consideration to be greater than that stated, when. — If the clerk of the county court is satisfied that the consideration stated in the deed is less than the value of the property and is not the real consideration, he has the power and it is his duty to ascertain from such evidence as may be obtainable the value of the land conveyed in the deed presented to him with request to certify thereon the payment of the transfer tax due the State. Opinion of Attorney-General Gates. 8. No fee for certificate; reading corrected. — The word "of" be- tween the words "certificate" and "registration" should read "or;" and, with this reading, it is clear that neither the clerk of the county court nor the county register is entitled to any fee on account of said certificate required to be made by the said clerk. Opinion of Attor- ney-General Gates. This same reading was given or indicated in the Code Supplement (1904), p. 103.— Ed. 8o Tennessee ,Tax Digest. 9. Tax is not collectible on deeds to government of the United States. — It is doubted that this transfer tax is collectible from the government of the United States upon a deed transferring land to it, and the opinion is expressed that such tax is not collectible in such case. Opinion of Attorney-General Gates. This opinion is based upon the rule that property of the United States is not subject to State taxation, as held in Van Brocklin v. Anderson, 117 U. S., 151, 29 L. ed., 845 (reversing on this point the case of Anderson v. Van Brocklin, 15 Lea, 33), and in Railroad v. Price Go., 133 U. S., 504, 505, 33 L. ed., 692. But the question arises: Is the deed properly probated for registration under this law where the transfer tax is not "paid even by the government of the United States? The registration laws, it seems, will apply to the government of the United States, and a deed to it registered without proper probate would be equivalent to no reg- istration, and ineffective as against creditors of the conveyor and as against innocent purchasers from him without actual notice. — Ed. CORPORATION CHARTER AND CONSOLIDATION TAXES PAYABLE TO SECRETARY OF STATE. Sec. 9. Tax on corporation charters or amendments. — All persons applying for charters of incorporation and all corpo- rations applying for amendments to their charters shall pay to the secretary of State, as a privilege tax for granting of such charter or amendment, one-tenth of one per centum upon the capital stock so fixed in the charter applied for or upon the increase of the capital stock sought to be made by the amend- ment to the charter; and he shall account for and pay into the treasury of the State all moneys so received by him monthly, making a report under oath of the amount so col- lected ; and the privilege tax herein provided for shall be in' lieu of all other privilege taxes upon granting charters of in- corporation or amendments thereof. But this section shall not apply to corporations for literary or religious purposes. The tax shall be due and payable upon the incorporation of said corporation, joint stock company, or association, or upon the increase of the capital stock thereof, and such corporation, joint stock company, or association shall not have or exer- cise any corporate powers until the said tax shall have been paid, and the secretary of State shall not file or record any charters, certificate of incorporation, or article of association, Privilege Taxes Payable to Comptroller. 8i or certify or give any corporation, joint stock company, or as- sociation its charter until the foregoing tax has been paid ; and no such company incorporated by any act of the legisla- ture shall go into operation or exercise any corporate powers or privileges until the said tax has been paid. This section shall not be construed as an additional tax to that imposed by chapter 32 of the Acts of 1897. Sec. 10. Tax on corporations acquiring the property of other corporations. — Whenever hereafter any corporation organized under the laws of this or any other State, foreign or domestic, shall, by lease, purchase, consolidation, or merger, acquire the property of any other corporation having a franchise derived from this State, and shall, by virtue of such lease, purchase, consolidation, or merger, exercise such franchise, then the cor- poration so acquiring such property and exercising such fran- chise shall pay unto the State of Tennessee a privilege tax of one-tenth of one per cent, on the amount of the outstanding capital stock of the corporation whose property and franchise shall have been so acquired. After such lease, purchase, con- solidation, or merger shall have been effected, said privilege tax shall be collected by the secretary of State and by him paid into the treasury. MISCELLANEOUS PROVISIONS. Sec. 11. Renewal of license in case of death or sale. — A State and county license issued to any firm, person, copartnership, or corporation may be renewed in case of the death of a member, or in case of the sale or transfer of the assets of the firm, per- son, copartnership, or corporation or by the holder thereof without the repayment of the privilege tax for the unexpired term it was issued for. See Acts 1907, ch. 602, sec. 27j (2b), post, p. 162. I. Transfers were not allowed before statute authorizing same. — Without a statute authorizing a transfer of the license, it was held in the case of Mayes v. Erwin, 8 Hum., 290, that the license is a per- sonal privilege to the individual to whom it is granted, and cannot in 82 Tennessee Tax Digest. any manner be transferred to another, and that the purchaser of the goods and business of the licensee must pay the tax, though the seller had paid the tax for license to vend them. — Ed. 2. All licenses are transferable, when. — All licenses issued for the exercise of any privilege are transferable in the manner and to the extent provided in the statute. Opinion of Attorney-General Gates. Sec. 12. State privilege tax " in lieu of all other taxes " ex- cludes county and city privilege taxes. — Whenever the words " in lieu of all other taxes " occur in this act, it is hereby de- clared to be the legislative intention that county and municipal taxes are excluded. State tax "in lieu of all other taxes." — A statute fixing a privilege tax for the State " in lieu of all other taxes " precludes cities and coun- ties from imposing a privilege tax. Memphis v. Insurance Gos., 3 Shannon's Gases, 463; Memphis v. Insurance Go., 6 Bax., 527; Insur- ance Go. V. Taxing District, 4 Lea, 646, 647; Memphis v. Garrington, 7 Pickle, 511, 515; Hunter v. Memphis, 9 Pickle, 571, 575; Memphis v. Express Go., 18 Pickle, 340. These decisions were based upon stat- utes with the said provision, but some of them upon statutes without the declaration of legislative intention. Sec. 13. Population of any city, town, or taxing district in- cludes what territory. — Whenever in this act the population of any city, town, or taxing district is referred to, it shall be construed to include the territory of the county within which such city, town, or taxing district of the population set out with reference to that subject is located or situated. See sec. 15, below. Obscurity and meaninglessness of this section. — This section is involved in obscurity, and seems to be meaningless. If it be considered as defining what territory shall be included, it is meaningless, because it, in effect, provides that a city, town, or taxing district shall include the territory within which it is located or situ- ated, or, in other words, that a city, town, or taxing district shall in- clude the territory covered by it, or shall include the territory included within it. This is a definition in its own terms, and is no definition. If this section be considered as with special reference to the county, it is meaningless. Of course a city includes that part of the terri- tory of the county within which territory it is locsited or situated, Privilege Taxes Payable to Comptroller. 83 The meaning probably intended to be conveyed by this section is that where a city, town, or taxing district is only partly located or situated in one county and partly in another county or counties, then, for the purposes of State and county privilege taxation, the city, town, or taxing district of the stated population shall be confined or limited to the territory of the county in which it is proposed to exercise a taxable privilege, and those subject to State and county privilege taxes shall pay the same in each county in which they exercise the privi- lege; or if they pay the tax in only one county, the business must be confined to such county, and cannot be exercised in that part of the city, town, or taxing district in another county or counties, because they have paid in one county the State and county privilege taxes, as in a city, town, or taxing district of the stated full population. Of course, no controversy can likely arise as to stationed, local, located. or locative business, as that of a theater or warehouse and elevator; but with reference to any business that is not locative, but itinerant, as auctioneers and transfer companies, a controversy may arise. But by this provision it was likely intended that the itinerant business should be confined to that part of the city lying in the county in which the tax has been paid. If the purpose of this section was to provide that where a privilege tax is imposed only in cities, towns, or taxing districts, no other priv- ilege tax can be required for the exercise of the privilege in the county and outside of the limits of the city, it is useless, unnecessary, and superfluous, as this has always been the law without this express pro- vision. But the utter confusion and obscurity of this section prevents a clearer solution of its meaning. Solve it, if you can. — Ed. Sec. 14. Tax to be paid whether a business is made of the privilege or not. — Any and all parties, firms, and corporations exercising any of the foregoing privileges must pay the tax as set forth in this act for the exercising of said privilege, whether they make a business of it or not, unless otherwise provided. 1. Words taxing an act not constituting a business are nugatory.— The words attempting to tax the exercise of a privilege where a busi- ness is not made of it are nugatory. The legislature cannot tax a single act, per se, as a privilege, inasmuch as such act, in the very nature of things, cannot, in and of itself, constitute a business, occupation, pur- suit, or vocation. There is no privilege to be taxed, unless it is exer- cised so as to make a business of it. Trentham v. Moore, 3 Gates, 346, 351-353. 2. Exercise of privileges without license forbidden. — By Acts 1907, ch. 602, sec. 27, post, p. 159, no one shall commence or continue a busi- 84 Tennessee Tax Digest. ness declared to be a privilege without obtaining a license. See note 24, ante, p. 17. 3. Another privileged business. — A person licensed and paying a privilege tax to do one business cannot do another business in con- nection therewith where such other business is expressly declared to be a privilege and is taxed as such, and no exemption or exception is made in case where it is carried on in connection with the first licensed business. Cigar Co. v. Cooper, 15 Pickle, 473. Sec. 14a. No exemptions except as provided. — This act shall not be so construed as to exempt any person, firm, or corpora- tion whatever exercising any of the foregoing privileges from the payment of the tax herein prescribed for the exercise of said privileges as herein provided, and except as provided in chapter 121 of the Acts of 1869 and 1870, excepting State and county fairs and their tenants. See sec. 2a, ante, p. 11, exempting soldiers in the war between the States. See Code, sees. 704 and 705, for the exemption here made. As to other exemptions, see Code, sees. 695-705; Acts 1901, ch. 87, compiled in the Code Supplement (1904), p. 74. There may be a ques- tion as to the exemptions other than those provided for in sees. 704 and 70S of the Code, because this statute (the above section) is very positive in withdrawing all exemptions except the one specified. But these exemption statutes were special acts, and the presumption is against their repeal by implication. See Burnett v. Maloney, 13 Pickle, 697, 703-706; Zickler v. Bank, 20 Pickle, 295. Sec. 15. Population ascertained; town defined.— Population referred to in this act shall be construed to mean population according to the federal census of 1900 or any subsequent fed- eral census, and the word " town," whenever it occurs, shall be construed to mean any village or settlement having a pop- ulation of more than fifty (50) inhabitants, either incorporated or not. See sec. 13, above. Privilege Taxes Payable to Comptroller. 1. Population of the counties according to the federal census of 1900.— Anderson 17,634 Bedford 23,845 Benton 11,888 Bledsoe 6,626 Blount 19,206 Bradley 15,759 Campbell 17,317 Cannon 12,121 Carroll 24,250 Carter .' 16,688 Cheatham 10,112 Chester 9,896 Claiborne . 20,696 Clay 8,421 Cocke 19,153 Coffee 15,574 Crockett 15,867 Cumberland 8,311 Davidson .. 122,815 Decatur 10,439 DeKalb 16,460 Dickson 18,635 Dyer 23,776 Fayette 29,701 Fentress 6,106 Franklin 20,392 Gibson *. . . 39,408 Giles 33,035 Grainger 15,512 Greene 30,596 Grundy 7,802 Hamblen 12,728 Hamilton 61,695 Hancock 11,147 Hardeman 22,976 Hardin 19,246 Hawkins 24,267 Haywood .'.... 25,189 Henderson 18,117 Henry 24,208 Hickman 16,367 Houston 6,476 Humphreys 13,398 Jackson 15,039 James 5,407 Jefferson 18,590 Johnson 10,589 Knox 74,302 Lake 7,368 Lauderdale 21,971 Lawrence 15,402 Lewis 4,455 Lincoln 26,304 Loudon 10,838 McMinn 19,163 McNairy 17,760 Macon 12,881 Madison 36,333 Marion 17,281 Marshall 18,763 Maury 42,703 Meigs 7,491 Monroe 18,585 Montgomery 36,017 Moore 5,706 Morgan 9,587 Obion 28,286 Overton 13,353 Perry 8,800 Pickett 5,366 Polk 11,357 Putnam ^ . . 16,890 Rhea 14,318 Roane 22,738 Robertson 25,029 Rutherford 33,543 Scott 11,077 Sequatchie 3,326 Sevier 22,021 Shelby 153,557 Smith 19,026 Stewart 15,224 Sullivan 24,935 Sumner 26,072 Tipton 29,273 Trousdale 6,004 Unicoi 5,851 Union 12,894 Van Buren 3,126 Warren 16,410. 86 Tennessee Tax Digest. Washington 22,604 Wayne 12,936 Weakley 32,546 White 14,157 Williamson 26,429 Wilson 27,078 2. Population of incorporated cities, taxing districts, and towns of 1,000 inhabitants or over according to the federal census of 1900. — Athens 1,849 Bolivar 1,035 Bristol 5,271 Brownsville 2,645 Chattanooga 30,154 Clarksville 9,431 Cleveland 3,858 Clinton 1,111 Columbia 6,052 Covington 2,787 Davton 2,004 Dickson 1,363 Dyer 1,204 Dyersburg 3,647 Fayetteville 2,708 Franklin 2,180 Gallatin 2,409 Greeneville 1,817 Harriman 3,442 Humboldt .' 2,866 Huntingdon 1,332 Jackson 14,511 Jellico 1,283 Johnson City 4,645 Knoxville 32,637 Lebanon 1,956 Lewisburg 1,421 Lexington 1,332 Martin 1,730 McKenzie 1,266 McMinnville 1,980 Memphis 102,320 Milan 1,682 Morristown 2,973 Mount Pleasant 2,007 Murfreesboro 3,999 Nashville 80,865 Newbern 1,433 Newport 1,630 Obion 1,034 Paris 2,018 Pulaski 2,838 Ripley . 1,640 Rockwood 2,899 Rogersville 1,386 Shelbyville 2,236 South Pittsburg 1,789 Springfield 1,732 Sweetwater 1,716 Trenton 2,328 Tullahoma 2,684 Union City 3,407 Winchester 1,338 3. Population of incorporated towns only is given in federal census of 1900 and in above table. — A town, in the sense of the privilege tax laws, as defined in this section, means any village or settlement hav- ing a population of niore than fifty inhabitants, whether incorporated or not. But the federal census of 1900 embraces the population of incorporated places only, and no attempt was made to secure and give a separate enumeration of unincorporated places. See Census Popu- lation, Part 1, page Iviii, bottom of first column. This was in accord- ance with the twelfth section of the census act, approved March 3, 1899. Under the revenue act graduating the privilege tax in certain cases according to the population of cities, towns, or taxing districts, as shown by the federal census of 1900 or any subsequent federal census. Privilege Taxes Payable to Comptroller. 87 the population of unincorporated towns cannot be ascertained from the federal census of 1900, because not given by it. The population of incorporated towns only is given in the above table. — Ed. 4. Federal census of 1900 gives the population of incorporated towns only; construction and constitutionality of statute considered in this view. — There is a latent obscurity and a consequent uncertainty of meaning in the provisions of this statute. It provides that the pop- ulation shall be ascertained from the federal census of 1900 or any subsequent federal census. It defines a town to be any village or set- tlement having a population of more than fifty inhabitants, whether incorporated or not. The latent obscurity results from the fact that the federal census of 1900 does not give the population of unincorpo- rated towns, but only of those that were incorporated, whereas the statute is based upon the idea that the said census gave the population of unincorporated towns as well as those incorporated. Taking the census of 1900 as the rule, all unincorporated towns are excluded, be- cause their populations are not given in said census; but under the statutory definition of a town, it is immaterial whether it is incorpo- rated or not, so that the town contains more than fifty inhabitants. This presents the latent obscurity, and one that becomes apparent upon consideration of the said census. The revenue law imposing privilege taxes graduated according to the population of towns as determined from the census unquestionably applies to all incorporated towns of the specified population, provided it is not invalidated by the inapplicability of the statute to unincorporated towns as herein- after mentioned and discussed. But the question whether such reve- nue law applies to unincorporated towns, villages, or settlements of more than fifty inhabitants coming within the specified population classifications remains to be solved. No method of ascertaining the population of unincorporated towns is prescribed, except the census method,' which excludes all other methods, especially in the absence of any other express method. This conclusion is irresistible from a reading of the statute, without the knowledge that the federal census of 1900 does not contain the population of unincorporated towns. Can the knowledge of such fact change the correct and natural inter- pretation of the meaning of the statute? It is thought not. The census method, as before stated, is noneffective, because it does not give the population of unincorporated towns. The method of actual count, if adopted independent of and contrary to the provisions of the statute, would be impracticable even in ap- proximating the number of inhabitants, and this method would be expensive and uncertain. No one is authorized by law to ascertain and report the number. In any suit involving the tax, the number would have to be ascertained by the testimony or evidence of persons having knowledge on the subject. The legislature never contemplated such chaotic procedure, but adopted the census method as an exclusive one. The federal census method of ascertaining population is the one 88 Tennessee Tax Digest. universally adopted in the privilege tax legislation of this State, and in all other legislation v^here not in violation of some constitutional provision. This legislative practice has grown into a wise public pol- icy which should not be disregarded or departed from by an unnatu- ral and strained construction of a statute, nor by a construction con- trary to the plain and evident meaning thereof. There is one class of unincorporated towns coming within the stat- utory definition of a town that may be within the meaning and oper- ation of the statute. This class embraces the defined towns that were incorporated when the federal census of 1900 was taken and that have since become unincorporated. The population of this class of towns is given in said census; and, by the definition and terms of the statute, the towns of this class are within its meaning and operation, and the statute may be applied to them, if such construction would not make the statute vicious class legislation, as between such towns, as im- posing a privilege tax in unincorporated towns that were incorporated in 1900, and since becoming unincorporated, and exempting from the tax in unincorporated towns that were unincorporated in 1900. So, inasmuch as the census method is exclusive, and is noneffective as to unincorporated towns, there is no method of ascertaining the popula- tion of such towns so as to apply the privilege taxes imposed accord- ing to the population classifications. It is, therefore, concluded that the privilege taxes imposed with reference to the population classifica- tion of towns cannot be collected on that basis from those exercising the privileges in unincorporated towns, unless perhaps they were in- corporated when .the census was taken and have since become unin- corporated, as hereinbefore suggested, and such construction would not render the statute vicious class legislation as between such classes of unincorporated towns. Assuming that this conclusion is correct, the question whether the taxation of privileges in incorporated towns according to their population classifications, while there is .no such- taxation in unincorporated towns, is repugnant to the constitution as vicious class legislation, arises for solution. Assuming also that the conclusion that the law applies to towns that were incorporated when the federal census of 1900 was taken and have since become unincor- porated is correct, the question whether the taxation of privileges in unincorporated towns of this class and the exemption of all other unincorporated towns is repugnant to the constitution as vicious class legislation arises for solution. As to the last question, the construc- tion stated will probably not be given to the statute, if such construc- tion renders it repugnant to the constitution, though it might other- wise well bear such construction. See Manufacturing Co. v. Falls, 6 Pickle, 469; Railroad v. Crider, 7 Pickle, 489, 506; State v. Yardley, 11 Pickle, 556, 560; Henley v. State, 14 Pickle, 682; Railroad v. Harris, 15 Pickle, 704; State, ex rel., v. Brewing Co., 20 Pickle, 740; Railroad v. State, 2 Cates, 610. As to the first question, under the principle of the decisions holding the four mile law not unconstitutional because Privilege Taxes Payable to Comptroller. 89 incorporated cities were excepted from its operation, this law, con- strued as applying in its operation to incorporated towns, and not to unincorporated towns, may be sustained. See State v. Rauscher, 11 Lea, 96; Murphy v. State, 9 Lea, 378; Hatcher v. State, 12 Lea, 369, 372; Daly v. State, 13 Lea, 232; Woodward v. Brien, 14 Lea, 524; Stratton v. Morris, 5 Pickle, 526; Brinkley v. State, 24 Pickle, 476; Webster v. State, 2 Gates, 499; const., art. 11, sec. 8; art. 1, sec. 8, and notes. Sec. 16. Exercising privilege without paying tax is a misde- meanor; fine; interstate commerce excepted. — It is hereby de- clared a misdemeanor for exercising any of the foregoing priv- ileges without first paying the taxes prescribed for the exercise of the same, and all parties so oflfending shall be liable to a fine of not less than $10 nor more than $50 for each day such privi- lege is exercised without license ; but this inhibition shall not apply to any person, firm, or corporation engaged in interstate commerce. Sec. 17. Reports of collections, when to be made and what to show. — Every person charged with the collection of any of the foregoing taxes and privileges shall make monthly re- port of his collections to the proper State and county authori-. ties, which report shall show : 1. The date of issuance. 2. The date of payment. 3. The name of each party paying. 4. The kind of privilege. 5. The amount of privilege tax paid and the amount of ad valorem tax paid by each, respectively. 6. The date of expiration of license. 7 . The total amount of such collection for the month. He shall, within fifteen (15) days after the last day of each calendar month, file his report of such collections with the comptroller, if it be for State revenue, and with the county judge or chairman of the county court, if it be for county rev- enue ; and shall pay the amount of such report to the State comptroller or treasurer at the time he files his report, either in cash or by a certificate, showing that said amount has been 9o Tennessee Tax Digest. deposited to the credit of the State treasurer in a regular State depository, if it be State revenue, and shall pay the amount of said report at the time he files the same with the county judge or chairman of the county court to the county trustee, if it be county revenue. Sec. 17a. Reports of collections, penalty for failure. — If such reports are not filed and payments made as above specified, then there shall be added to the amount of said report, or to the amount it may be ascertained is due from such person, a penalty of one per cent, for each day he is in default, and he shall forfeit all rights to commission on said amount ; and in no case shall such penalty or forfeiture be remitted. Sec. 17b. Comptroller's report; blanks for clerks. — The comptroller shall prepare and publish with his report, made to each session of the general assembly, a correct, tabulated statement of the amount received from each privilege, from whatever source it may come, giving the amount paid by each county, and showing the privilege and ad valorem tax sepa- rately ; and for the purpose of making said report uniform, he will furnish to clerks uniform blanks on which to make re- ports ; but the failure to supply such blanks shall be no excuse for clerks failing to make reports as required in this act. Sec. 18. Penalty of delinquency of privilege taxpayers.. — It shall be the duty of privilege taxpayers to promptly pay the privilege tax levied under this act when the same becomes due ; and in case any privilege tax is not promptly paid when the same is due by law, the person, firm, association, or corpora- tion liable therefor shall pay a penalty of one per centum on the amount of the delinquent tax for each day's delinquency. Sec. 18a. Clerk of county court to collect promptly; exten- sion of time is a misdemeanor in office. — It shall be the duty of each county court clerk to promptly collect privileges col- lectible by him when the same become due ; and in no case shall any county court clerk or his deputy agree to give, per- Prtvilege Taxes Payable to CoMPTROLjiER. 91 mit, or allow any extension of time for the payment of the same or any part thereof ; and in case any county court clerk or his deputy shall violate this section, he shall be held and deemed guilty of a misdemeanor in office, and, upon convic- tion, such clerk or his deputy shall be fined not less than $25 nor more than $50. Sec. 18b. Clerk of county court to issue distress warrant for delinquent privilege tax. — The clerks of the county courts of the various counties of the State are hereby authorized and empowered, and it is hereby made their duty, as soon as any privilege tax or any part of the same is delinquent, to issue a distress warrant for the collection of the taxes and penalties thereon, and to enforce the collection of the same as in other cases. Sec. 19. Judge to charge grand jury; inquisitorial power; district attorney to prosecute ex officio, when. — It shall be the duty of each judge of the courts of the State haying criminal jurisdiction to specially give in charge to and have the grand jury of his court especially investigate all oflfenses defined in this act, and inquisitorial power is hereby given to grand ju- ries in the premises. It shall also be the duty of the respec- tive district attorneys of the State, upon the information or at the request of any reputable citizen of the State, to investigate and prosecute ex officio all the oflfenses defined in this act. Sec. 20. Laws of same session are not repealed. — All laws and parts of laws in conflict with this act are hereby repealed, except such acts as have been passed by this, the fifty-fifth general assembly, and this act shall take effect from and after its passage, the public welfare requiring it. (Passed and approved April 15, 1907.) 92 Tennessee Tax Digest. COLLATERAL INHERITANCE AND SUCCESSION TAX OR DUTY. (1893, ch. 174— effective April 10, 1893.) Section 1. Tax laid on all estates passing in any manner from decedents to all persons except father, mother, husband, wife, children, and lineal descendants born in lawful wedlock ; rate ; liability of personal representatives ; exerriptions ; adopted children not exempt. — All estates — real, personal, and mixed— of every kind whatsoever, situated within this State, whether the person or persons dying seized thereof be domiciled with- in or out of this State, passing from any person who may die seized or possessed of such estates, either by will or under the interstate laws of this State, or any part of such estate or estates, or interest therein, transferred by deed, grant, bar- gain, gift, or sale, made in contemplation of death, or intended to take effect in possession or enjoyment after the death of the grantor or bargainor to any person or persons or to bod- ies corporate or politic, in trust or otherwise, other than to or for the use of the father, mother, husband, wife, children, and lineal descendants born in lawful wedlock, of the person dying seized and possessed thereof, shall be subject to a duty, or tax, of five dollars on every hundred dollars of the clear value of such estate or estates so passing, and at and after the same rate for any less amount, to be paid to the use of the State ; and all owners of such estates and all executors and administrators and their sureties shall only be discharged from liability for the amount of such taxes or duties, the settlement of which they may be charged with, by having paid the same over for the use of the State, as hereinafter directied ; provided, that no estate which may be valued at a less sum than two hundred and fifty dollars shall be subject to this duty or tax; and, pro- v'ded, further, that the term *' children " shall not be construed to apply to adopted children. 1. Brothers and sisters are liable for the inheritance and succession tax imposed by Acts 1893, ch. 174, and have been since Acts 1895 (ex. ses.), ch. 4. — By Acts 1893, ch. 174, sec. 1, brothers and sisters were Inheritance Tax. 93 not exempt from the collateral inheritance and succession tax; but by- Acts 1893, ch, 89, sec. 7, enacted at a later hour on the same day, re- pealing, or, more properly speaking, suspending by implication the former act, they were exempt; but by the general revenue law of 1895, ch. 4, of the extra session, repealing by implication the said Acts 1893, ch. 89, as a whole, which includes sec. 7 thereof, the said act of 1893, ch. 174, sec. 1, was revived and made operative by removal of the sus- pension. Zickler v. Bank, 20 Pickle, 277. By Acts 1899, ch. 432, sec. 1; by Acts 1901, ch. 128, sec. 1; by Acts 1903, ch. 257, sec. 1; and by Acts 1907, ch. 541, sec. 1, ante, p. 7, it is enacted that there shall be levied and collected a collateral inheritance tax, as provided for in Acts 1893, ch. 174, and acts amendatory thereof. However, the last clause, " and acts amendatory thereof," is not in Acts 1899, ch. 432, sec. 1, but is in all of the other said acts. 2. Exception of certain relatives does not render the statute void. — Succession or inheritance taxation is not void for want of uniformity in excepting certain relatives. State v. Alston, 10 Pickle, 674; Bailey V. Drane, 12 Pickle, 18; Debardelaben v. State, 15 Pickle, 652; State, ex rel., v. Brewing Co., 20 Pickle, 732, 737; Magoun v. Bank, 170 U. S., 287-290, 42 L! ed., 1040, 1041; Eidman v. Martinez, 184 U. S., 591, 46 L. ed., 704. 3. Estates administered here passing to collateral heirs are subject to the tax. — Where a decedent was a citizen and resident of this State at the time of his death and his estate is being properly administered in this State, the clear net value of said estate going to his collateral heirs or next of kin is subject to the inheritance tax. Opinion of At- torney-General Gates. 4. Property of nonresidents not in this State is not subject to the inheritance tax. — Property not in this State at the time of the death of the owner, who was not a citizen nor resident of this State, is not subject to the inheritance tax. Opinion of Attorney-General Gates. 5. United States bonds are not exempt. — United States bonds are not exempt, but are subject to the inheritance tax, where that tax would otherwise attach. Opinion of Assistant Attorney-General Faw. 6. Proceeds of life insurance policy passing to brothers and sisters are subject to the inheritance tax. — The proceeds of a life insurance policy payable to the executors or administrators of the insured, "and passing upon his death to his brothers and sisters as his next of kin, are subject ta the collateral inheritance tax.— Opinion of Assistant Attorney-General Faw. 94 Tennessee Tax Digest. Sec. 2. Fair compensation to executors, etc. ; excess subject to tax. — Where a testator names or appoints one or more ex-, ecutors, and makes a bequest or devise of property to them in lieu of their commissions or allowances, or appoints them his residuary legatees, and said bequests, devises, or residuary leg- acies exceed what would be a fair compensation for their serv- ices, such excess shall be subject to the payment of the col- lateral inheritance tax or duty, the rate of compensation to be fixed by the proper officers or courts having jurisdiction in the case. Sec. 3. Tax on remainder estates subject to the tax is pay- able after termination of life or other estate. — In all cases where there shall be a devise, bequest, or descent of an estate, real or personal, to collateral relatives or strangers, liable to the collateral inheritance and succession tax, to take effect in possession or to come into actual enjoyment after the expira- tion of one or more life estates, or a period of years, the tax on such estates shall not be payable, nor interest begin to run thereon, until the person or persons liable for the same shall come into actual possession of such estate by the termination of the estates for life or years. Sec. 3a. Assessed on value at time of payment ; prepayment, when. — The tax shall be assessed upon the value of the estate at the time the right of possession accrues to the owner as aforesaid ; provided, that the owner shall have the right to pay the tax at any time prior to his coming into possession ; and in such cases the tax shall be assessed on the value of the estate at the time of the payment of the tax, after deducting the value of the life estate or estates for years. Sec. 3b. Taxes a lien on realty ; on personalty to be secured. — The tax on all real estate shall be and remain a lien on the real estate on which the same is chargeable until paid ; and the owner of any personal estate subject to the tax provided by this act shall make a full report and return of the same to the clerk of the county court of the proper county within one year Inheeitanoe Tax. 95 from the death of the decedent, and within that time enter into security for the payment of the tax to the satisfaction of such clerk ; and in case of failure so to do, the tax shall be immedi- ately payable and collectible. 1. Inheritance tax on contingent remaincjer interest is not payable until it comes into enjoyment, and bond for same is not required; rule as to vested remainder interests is reserved. — The owner of a contin- gent remainder interest in personal property is not required to make report and give security for the collateral inheritance and succession tax within one year from the death of the decedent, under the pro- visions of section 728, and such tax does not become payable until the contingent remainder estate comes into possession or actual en- joyment by the termination of the life estate; but whether this rule applies to vested remainder interests is expressly reserved. Harrison V. Johnston, 1 Gates, 245, 250-257. 2. Life tenant becom.ing owner of the remainder interest is liable for the tax on the remainder interest at that time ; merger of estates. — The life estate is terminated by merger, when the life tenant becomes the owner of the remainder interest by purchase thereof, and he then becomes liable for the collateral inheritance and succession tax upon the value of the remainder interests at the time of the purchase. Har- rison V. Johnston, 1 Gates, 245, 252, 253, 256-260. Sec. 4. Discount for early payment ; interest on delayed pay- ment. — If the collateral inheritance tax shall be paid within three months after the death of the decedent, a discount of five per centum on the amount of the tax shall be made and allowed; and if said tax is not paid at the end of one year from the death of the decedent, at which time it shall be due, in- terest shall then be char^^ed at the rate of six per centum per annum on such tax. Sec. 5. Duties of executor or administrator as to tax. — The executor or administrator or other trustee paying any legacy or share in the distribution of any estate subject to the col- lateral inheritance tax, as provided by this act, shall deduct therefrom at the rate of five dollars in every hundred dollars upon the whole legacy or sum paid ; or, if not money, he shall demand payment of a sum, to be computed at the same rate upon the appraised value thereof, for the use of the State, 96 Tennessee Tax Digest. and no executor or administrator shall be compelled to pay or deliver any specific legacy or article to be distributed, subject to tax, except on the payment into his hands of a sum com- puted on its value, as aforesaid ; and, in case of neglect or re- fusal on the part of said legatee or distributee to pay the same, such specific legacy or article, or so much thereof as shall be necessary, shall be sold by such executor or administrator at public sale for cash, after notice to such legatee or distributee, and after ten days' advertisement, as in case of ordinary ad- ministrator's sales ; and the balance that may be left in the hands of the executor or administrator, after reserving the tax, shall be distributed to the legatee or distributee as is or may be directed by law; and every sum of money retained by any executor or administrator, or paid into his hands on ac- count of any legacy or distributive share, for the use of the State, shall be paid by him without delay to the county court clerk of the county in which his accounts are being adminis- tered. Sec. 6. Conditioiial estate. — If the legacy subject to the col- lateral inheritance tax be given to any person for life or for a term of years, or for any other limited period, upon a condi- tion or contingency, if the same be money, the tax thereon shall be retained upon the whole amount; but if not money, application shall be made to the county court having jurisdic- tion of the accounts of the executors or administrators to make apportionment, if the case requires it, of the sum to be paid by such legatees, and for such further order relative thereto as equity shall require.. Such application shall be made by the executor of such estate after at least five days' notice to the parties concerned. Tax paid on contingent estates. — The tax cannot be required to be paid on the remainder estate until it comes into possession of the remaindermen, unless such estate depends upon a condition or con- tingency, and then the tax must be paid without waiting for the con- dition or contingency to happen. Bailey v. Drane, 12 Pickle, 16, 20-23. Inheritance Tax. 97 Sec. 7. Legacy payable out of real estate. — Wherever a leg- acy subject to the tax or duty hereby provided shall be charged upon or payable out of real estate, the heir or devisee, before paying the same, shall deduct therefrom at the rate aforesaid, and pay the amount so deducted to the executor ; and the same shall remain a charge and lien upon such real estate until paid, and the payment thereof shall be enforced by decree of the county court in the same manner that liens on real estate are now enforced in the chancery courts of this State, and the clerk of the county court officially shall be the complainant in such suit. Sec. 8. Information as to tax on real estate, who to give. — Whenever any real estate of which any decedent may die seized shall be subject to the collateral inheritance tax, it shall be the duty of executors and administrators to give informa- tion thereof to the clerk of the county court where administra- tion has been granted within six months after they undertake the execution of their respective duties, or, if the fact be not known to them within that period, within one month after the same shall have come to their knowledge ; and it shall be the duty of the owners of such estate, immediately upon the vesting of the estate, to give information thereof to such clerk of the court having jurisdiction of the granting of administra- tion. Sec. 9. Payment of tax and receipt for same. — It shall be the duty of any executor or administrator receiving or collecting collateral inheritance tax to pay the same to the fclerk of the county court granting the administration, and where his ac- counts should be administered, and to take duplicate receipts from such clerk for the same, one of which shall be forwarded forthwith to the comptroller of the treasury, whose duty it shall be to charge the clerk receiving the money with the amount, and countersign the receipt and return it to the exe- cutor or administrator, whereupon it shall be a proper voucher in the settlement of the estate; but in no event shall an execu- 4 98 Tennessee Tax Digest. tor or administrator be entitled to a credit in the settlement of his accounts with the county court clerk, or in the chancery court, if his accounts be there settled, unless the receipt is so countersigned by the comptroller. Sec. 10. Trzinsfer of stocks, etc. ; liability for tax. — When- ever any foreign executor or administrator or trustee shall as- sign or transfer any stocks or loans in this State standing in the name of the decedent or in trust for a decedent which shall be liable for the collateral inheritance tax, such tax shall be paid, on the transfer thereof, to the clerk of the county court where such transfer is made ; otherwise the corporation or per- son, permitting such transfer shall become liable to pay such tax. Sec. 11. Repayment of tax, when. — Wiienever debts shall be proven against the estate of a decedent after distribution of shares or legacies from which the collateral inheritance tax has been deducted, in compliance with this act, and the legatee or distributee is required to refund any portion of a legacy or share, a corresponding portion of said tax shall be repaid to him by the executor or administrator, if the said tax has not been paid to the clerk ; and if it has been so paid to the clerk, then it shall be repaid out of the State treasury upon the comp- troller's warrant, to be drawn by him in favor of the person entitled thereto, upon the county court clerk certifying, under his seal of office, that the same is justly due on account of the provisions of this section of this act. Sec. 12. Appraisement, report of; appeal; duty of county court clerk; annuities and life estates valued by Carlisle Life Tables ; appeals. — It shall be the duty of the clerk of the county court in which letters testamentary or of administration are granted to appoint an appraiser, as often as and whenever oc- casion may require, to fix the valuation of estates which are or shall be subject to collateral inheritance tax; and it shall be the duty of such appraiser to make a fair conscionable ap- praisement of such estates ; and it shall further be the duty Inheritance Tax. 99 of such appraiser to assess and fix the cash value of all annui- ties and life estates growing out of said estates, upon which annuities and life estates the collateral inheritance tax shall be immediately payable, out of the estate, at the rate of such valuation, but shall bear no interest till the lapse of twelve months from the death of the decedent ; and in fixing the value of such annuities and life estates, the computation shall be made by the Carlyle [Carlisle] Life Tables, whenever the use of life tables is necessary or applicable. Said appraisement shall be reduced to writing, in the nature of a report, and shall be by the appraiser filed with the clerk appointing him ; provided, that any interested person not satisfied with said appraisement shall have the right, at any time within thirty days after such appraisement is filed with the clerk, to file exceptions thereto, in writing, on giving security to pay all costs, together with whatever tax shall be fixed by the county court, and there- upon to have the county court to hear said exceptions ; and, upon such exceptions being filed, the county court shall have jurisdiction to determine all questions of valuation and of the liability of the appraised estate for such tax, subject to the right of appeal to the circuit court (or court of like jurisdic- tion), as in other cases. If an appeal should be prosecuted to the circuit court, such cause shall there be heard de novo. ICO Tennessee Tax Digest. 1. Carlisle Life Table, showing the expectation of life in additional years at any age from 10 to 100. — Given Additional Given Additional Given Additional Age. Years. Age. Years. Age. Years. 10 48.82 41 26.97 72 8.16 11 48.04 42 26.34 72, 7.72 12 47.27 43 25.71 74 7.33 13 46.51 44 25.09 75 7.01 14 45.75 45 24.46 76 6.69 15 45.00 46 23.82 77 6.40 16 44.27 47 23.17 78 6.12 17 43.57 48 22.50 79 5.80 18 42.87 49 21.81 80 5.51 19 42.17 50 21.11 81 5.21 20 41.46 51 20.39 82 4.93 21 40.75 52 19.68 83 4.65 22 40.04 53 18.97 84 4.39 23 39.31 54 ■ 18.28 85 4.12 24 38.59 55 17.58 86 3.90 25 37.86 56 16.89 87 3.71 26 37.14 36.41 57 58 16.21 15.55 88 3.59 27 89 3.47 28 35.69 59 11.92 90 3.28 29 35.00 60 14.34 91 3.26 30 34.34 61 13.82 92 3.37 31 33.68 62 13.31 93 3.48 32 33.03 63 12.81 94 3.53 33 32.36 64 12.30 95 3.53 34 31.68 65 11.79 96 3.46 35 31.00 66 11.27 97 3.28 36 30.32 67 10.75 98 3.07 37 29.64 68 10.23 99 2.77 38 28.96 69 9.70 100 2.28 39 28.28 70 9.18 40 27.61 71 8.65 2. Explanation. — A person 33 years of age is estimated to live 32.36 years longer, or is estimated to live to the age of 65.36 years. Inheritance Tax. ioi 3. Carlisle Annuity Table, showing the present value of a life an- nuity of one dollar, at six per cent, interest, at any age from birth to 100 years. — Age of Present Age of Present Age of Present Person in Value in Person in Value in Person in Value in Years. Dollars. Years. Dollars. Years. Dollars. ... 10.439 34 ... 12.675 68 ... 6.546 1 ... 12.078 35 ... 12.573 69 ... 6.277 2 ...... . ... 12.925 36 ... 12.465 70 . . . 5.988 3 ... 13.652 37 ... 12.354 71 . . . 5.704 4 ... 14.042 38 . . . 12.239 72 ... 5.424 5 ... 14.325 39 ... 12.120 73 ... 5.170 6 ... 14.460 40 ... 12.002 74 ... 4.944 7 ... 14.518 41 ... 11.890 75 ... 4.760 8 ... 14.526 42 ... 11.779 76 ... 4.579 9 ... 14.500 43 ... 11.668 n ... 4.410 10 ... 14.448 44 ... 11.551 78 ..."... . ... 4.238 11 . . . 14.384 45 :.. 11.428 79 ... 4.040 12 ... 14.321 46 ... 11.296 80 . . . 3.858 13 ... 14.257 47 ... 11.154 81 ... 3.656 14 ... 14.191 48 ... 10.998 82 ... 3.474 IS ... 14.126 49 ... 10.823 83 ... 3.286 16 ... 14.067 50 ... 10.631 84 ... 3.102 17 ... 14.012 51 ... 10.422 85 ... 2.909 18 ... 13.956 52 ... 10.208 86 ... 2.739 19 ... 13.897 53 . . . 9.988 87 ... 2.599 20 . . . 13.835 54 ... 9.761 88 ... 2.515 21 ... 13.769 55 ... 9.524 89 ... 2.417 22 ... 13.697 56 . . . 9.280 90 ... 2.266 23 ... 13.621 57 ... 9.027 91 ... 2.248 24 ... 13.541 58 ... 8.772 92 ... 2.337 25 ... 13.456 59 ... 8.529 93 ... 2.440 26 ... 13.368 60 ... 8.304 94 ." ... 2.492 27 ... 13.275 61 ... 8.108 95 ... 2.522 28 ... 13.182 62 ... 7.913 96 ... 2.486 29 ... 13.096 63 . . . 7.714 97 ... 2.368 30 ....... . .. 13.020 64 ... 7.502 98 ... 2.227 31 ... 12.942 65 . . . 7.281 99 ... 2.004 32 ... 12.860 66 . . . 7.049 100 . . . 1.624 33 ... 12.771 67 ... 6.803 102 Tennessee Tax Digest. 4. Explanation and illustration. — The foregoing table shows the present value or worth of an annuity of $1 for the life of a person at any given age from birth to 100 years, where money is worth six per cent, interest, and this rate is the basis to be used in estimating values under this collateral inheritance and succession tax law. To find the value of a given life annuity, multiply the amount of the an- nuity by the number representing the present value of an annuity of $1 as given in the table for the given age of the annuitant. To ascertain the present value of any person's life estate for the purpose of taxation under this statute, (1) calculate the legal interest on the sum or ascertain the net rents and profits on the property for one year; (2) multiply the amount of the said annual interest or net income by the number representing the value of a life annuity of $1 at the life tenant's age as shown in the table; and (3) the product will be the present value or .present worth of such life estate. For in- stance, suppose the fund or property in which the life estate exists is worth $1,000, that the life tenant is 30 years old, and that the annual interest or net income is $60. By the table the present value or pres- ent worth of a life annuity of $1 where the annuitant is 30 years., old is $13,020. Multiply $13,020 by 60, and the product is $781.20, which is the present value or present worth of the life estate in a fund or property worth $1,000, and yielding a net annual income of $60, where the life tenant is 30 years old. 5. Use of tables. — The Carlisle Tables are to be arbitrarily used in administering this collateral inheritance and succession tax law. But where rights between individuals are involved, and where the inheritance tax is not involved, these tables, as well as other such tables, may be used in connection with the proof; and, in the absence of any proof, they may be arbitrarily used as guides. Carnes v. Polk, 5 Heis., 247, 248; Aiken v. Suttle, 4 Lea, 132; Railroad v. Ayres, 16 Lea, 729, 730. 6. Author and name of tables. — The Carlisle Tables were prepared by Joshua Milne from records of observations made upon 8,000 per- sons in the town of Carlisle, in England, and were not prepared by " Professor Carlisle," as stated in Carnes v. Polk, 5 Heis., 247, nor by any man by the name of Carlisle. The tables took their name from said town, and not from their author. — Ed. Inheritance Tax. [03 7. Table showing present value of $1 payable at the end of any given number of years not exceeding 40, discounting at the rate of six per cent, compound interest. — Years. 1 ... 2 ... 3 ... 4 ... 5 ... 6 . .. 7 ... 9 10 11 12 13 14 Present Value. . . .9434 .. .8900 . . .8396 . . .7921 .. .7473 . . .7050 .. .6651 .. .6274 .. .5919 .. .5584 .. .5268 .. .4970 .. .4688 .. .4423 Years. 15 .... 16 .... 17 .'. . . 18 . . . . 19 .... 20 . . . . 21 .... 22 . . . . 23 . . . . 24 . . . . 25 . . . . 26 ... . 27 . . . . 28 . . . . Present Value. .. .4173 . . .3936 . . .3714 . . .3503 . . .3305 .. .3118 .. .2942 .. .2775 . . .2618 .. .2470 . . .2330 .. .2198 : . .2074 .. .1956 Years. 29... 30 ... 31 ... 32 ... 33 ... 34 ... 35 ... 36 ... 37 ... 38 ... 39 ... 40 ... Present Value. . . .1846 . . .1741 .. .1643 .. .1550 . . .1462 . . .1379 . . .1301 . . .1227 .. .1158 . . .1092 . . .1031 .. .0972 8. Table showing present value of an annuity certain of $1 pay- able at the end of each year for any number of years not exceeding 40, discounting at the rate of six per cent, compound interest. — 1 943 15 9.712 2 1.833 16 10.106 3 2.673 17 10.477 4 3.465 18 , ..... 10.828 5 4.212 19 11.158 6 4.917 20 11.470 7 5.582 21 11.764 8 6.210 22 23 12.042 9 6.802 12.303 10 7.360 24 12.550 11 7.887 25 12.783 12 8.384 26 13.003 13 8.853 27 13.211 14 9.295 28 13.406 29 13.591 30 13.765 31 13.929 32 14.084 33 14.230 34 14.368 35 14.498 36 14.621 37 14.737 38 14.846 39 14.949 40 15.046 9. Burden on defendant attacking valuation shown by the appraise- ment, when. — Where, in the suit to recover the collateral inheritance and succession tax, the petition states the value of the estate to be as fixed by an appraisement, provided for in section 12 of the act (Code section 737), it is incumbent on the defendant, if dissatisfied with the appraisement, to^ show the real value of the estate subject to the tax; and especially is this so when he had actual notice of the appraise- ment, and examined the appraiser after he had exhibited his appraise- I04 Tennessee Tax Digest. ment, and no serious attempt was made to criticize or impeach it. - Harrison v. Johnston, 1 Gates, 245, 264-266. Sec. 13. Misdemeanor, when appraiser guilty of. — It shall be a misdemeanor in any appraiser appointed by the county court clerk to make any appraisement in behalf of the State, to take any fee or reward from any executor, administrator, legatee, next to kin, or heir of any decedent ; and for any such offense the clerk shall dismiss him from such service ; and, upon conviction, he shall be fined not exceeding five hun- dred dollars and imprisoned in the county jail not exceeding one year, one or both ; and the court shall have the power to assess the imprisonment if the jury does not do so, as well as a fine, within the limit of the power of the court. Sec. 14. Record of appraisements, and monthly reports thereof to be made to comptroller by clerks of county courts. — It shall be the duty of the county court clerks to enter in a book to be provided at the expense of the State, to be kept for that purpose, and which shall be a public record, the returns made by all appraisers under this act, opening an account in favor of the State against the decedent's estate, and the county court clerk may give certificate of payment of such tax from said record ; and it shall be the duty of said clerk to transmit to the comptroller, on the first day of each month, a statement of all reports or returns made by appraisers during the preced- ing month, which statement shall be entered by the comp- troller in a book to be kept by him for that purpose. Sec. 14a. Payment enforced by county court; its jurisdic- tion; equity of redemption barred. — Whenever any such tax on real estate shall have remained due and unpaid for one year, it shall be the duty of the county court clerk, in his offi- cial name as clerk, to apply to the county court, by bill or pe- tition, to enforce the payment of the same, whereupon, after process is duly served or notice duly given to the owner of the real estate charged with the tax and to such other persons as may be interested, after the manner of the practice of the Inheeitanoe Tax. 105 chancery courts, the county court shall proceed, according to equity, to make such decrees and orders for the enforcement of the lien and the payment of said tax out of such real estate as shall be just and proper, the county court being hereby in- vested with jurisdiction for said purposes; and any sales of real estate made hereunder shall be made on a credit of not less than six nor more than twenty-four months, barring the right of redemption as in chancery sales. Jurisdiction of county court is not ousted by pendency of adminis- tration suit in chancery court. — Jurisdiction of the county court to collect the tax, under the provisions of sections 14a and 15b, is not ousted because the estate of the decedent is being administered by a bill in the chancery court for the settlement thereof. The provision in section 22, making it the duty of the chancery court to see that this tax upon estates therein administered is paid, is only an additional or supplemental remedy. Harrison v. Johnston, 1 Gates, 245, 260, 261. Sec. 14b. State may bid in, and pay costs; writ of possession. — If no one bids an amount at such sales sufficient to cover the taxes due and costs, the clerk of the county court, by him- self or agent, shall bid the land in for the State, bidding an amount deemed sufficient to cover said taxes due and costs; and in this event, upon confirmation of the report of sale, a writ of possession may be issued to place the State or its agents in possession of such real estate, and so as to any other purchaser. If the State so become the purchaser of real estate, the cost of the cause shall be paid by the State, the comptroller drawing his warrant therefor in favor of such clerk, upon the clerk certifying such cost bill to the comptroller. Sec. 14c. Clerk of county court may postpone suit, when. — If said clerk knows of any good and sufficient reason why the payment of such tax has been delayed, he shall not be com- pelled to file such bill immediately upon said tax becoming due, but may, in his discretion, postpone the bringing of such suit to such time as he deems proper, within the limits of this act. io6 Tennessee Tax Digest. Sec. 14d. Attorney's fee; appeal, and additional attorney's fee. — If the court adjudges such tax to be due, and a charge upon the real estate, it shall tax up, as a part- of the costs, a reasonable attorney's fee for the clerk's solicitor or attorney in the case, to be collected out of the land as the said tax and other costs. Appeals from final decrees in suits under this sec- tion shall lie to the circuit court, where an additional attor- ney's fee for services in that court shall be taxed up as costs (if the said tax be found due and a lien on the land} in favor of the attorney-general of the circuit, who shall attend to such suits in the circuit court, such fee to be fixed by the court. In the trial of suits under sections 14 to 14d, inclusive, in the county court, the proof may be heard orally or by deposition, but on appeal the cause shall be heard on the record brought up. As to attorneys' fees, see sees. 15c and 16. 1. Attorneys' fees taxed as costs against delinquent. — The reason- able fees of the attorneys provided for in sections 14d and 15c will be taxed as part of the costs against the party held liable for the tax. Harrison v. Johnston, 1 Gates, 245, 261, 262. 2. District attorney's fee taxed as costs for benefit of the State.— The fee allowed the district -attorney-general under sections 14d and 15c will be taxed in his name; but under Acts 1897, ch. 41, his such fee is for the benefit of the State, and must be paid into the treasury of the State in the same manner as other fees and costs taxed in favor of the district attorneys-general. Harrison v. Johnston, 1 Gates, 245, 262, 266, 267. Sec. 15. Collection of delinquent tax by suit upon notice. — If the clerk of the county court shall discover that any col- lateral inheritance tax has not been paid over according to law, he shall cause notice to be served upon the executors, ad- ministrators, legatees, or distributees, as the case may be, of the decedent whose estate is subject to the tax, notifying them to appear before the county court on a certain day, which need not be the first day of the term, and show cause why the said tax should not be paid ; and, when personal service cannot be Inheritance Tax. 107 had, notice shall be given for four weeks, once a week, in a newspaper published or circulating" in the county, and the mat- ter shall be heard by said court on written or oral testimony; and if the tax should be found due and unpaid, the said delin- , quent shall pay the tax and cost, and the said court shall enter such judgment and orders to this end as may be needful to enforce the collection of the tax and costs. Such notice shall be served at least five days before the time set therein for ap- pearance ; and if by publication, the last publication shall be at least five days before the time of appearance. Sec. 15a. Or by bill; attachment and injunction. — Instead of the remedy in the last section, the clerk may enforce the col- lection of such delinquent tax by bill, filed in his name as clerk, in the county court, to be proceeded with after the manner of chancery suits ; and if he so proceeds by bill, he may obtain writs of attachment against the property of the delinquents, if there be grounds for attachments, as now provided by law, or writs of injunction, if there be grounds for the same. Sec. 15b. Jurisdiction of county court; appeals and trial in circuit court; appeal bond by defendant as appellant. — The county courts are invested with full jurisdiction to hear and determine such suits as if a court of equity for this purpose. But in such cases the testimony before the county court may be either oral or in writing. From final judgments, decrees, or orders in the county courts in suits or proceedings provided by this section, appeals shall lie to the circuit court, in which court the cause shall be heard de novo, if commenced by notice in the county court ; but if commenced by bill, it shall be heard only upon the record. If the delinquent be the appellant, he shall give bond upon appeal, not only for the costs, but also to pay the tax due if he is cast in the suit. Sec. 15c. District attorneys to attend to appeals in circuit courts ; attorneys' fees to be taxed. — In said appeals, the attor- ney-general of the circuit shall attend to the suits for the clerk io8 Tennessee Tax Digest. or State in the circuit court, and his fee and that of the clerk's attorneys in the county court, if the delinquent [be] held lia- ble, shall be taxed up as costs by the respective courts sub- stantially as provided in section 14 of this act [section 14d]. As to attorneys' fees, see sees. 14d and 16. Sec. 16. County court clerks are State's agents for coU'ect- ing tax; provisions as to; compensation; employment of coun- sel and their fees; costs. — The clerks of the county courts of the several counties of the State shall be the agents of the State for the collection of the collateral inheritance and succession tax, or duty, provided for by this act; and for their services rendered in collecting and paying over the same, they shall be allowed to retain five per centum on all such taxes paid over and accounted for; and it shall be the duty of said clerks, v^henever necessary, to employ an attorney to aid them in col- lecting, by suits, the said collateral inheritance tax, the fees of such attorneys to be taxed up by the court as costs against the delinquent, if he shall be held liable, such fees to be reasonable. Any such suits are, on the one side, to run in the official name of the clerk, and may be review^ed [revived] in the name of his successor in office ; but he is not required to give any bonds for costs in bringing suits or on appeals ; and if suits are decided against him, judgment shall be given against the State for costs,'and the State shall pay the same, unless the court should be of the opinion that the suit brought or the appeal prose- cuted by the said clerk was malicious or frivolous, in which event the court shall tax the cost against the clerk individ- ually; and when the costs, expenses, and attorneys' fees cannot be collected out of the delinquent when adjudged against him, or when the costs are adjudged against the State, the comp- troller is authorized and empowered, in settlement of accounts of such clerks [clerk], to allow him to retain such costs and reasonable attorneys' fees incurred in the collection of such taxes. The fact that the clerk is a party to such suits shall not render him incompetent to issue writs, subpoenas, notices. iNnERITANCE TaX. IO9 etc., in such suits, and for the same he shall be entitled to re- ceive the same fees now allowed by law for such services, and also the usual fees for making out transcripts on appeals. As to attorneys' fees, see sees. 14d and 15c. 1. Attorney's fee to be taxed as costs, and not paid by the State, when. — Where litigation is necessary to enforce the payment of the inheritance tax, there should be taxed up as part of the costs a fee in favor of the attorneys representing the clerk; and if the attorneys fail to have this done, they cannot expect the State- to pay a fee out of the tax recovered; or 'if the attorneys are allowed a fee taxed as a part of the costs of the cause, that is all they are entitled to receive under the statute. Opinion of Attorney-General Gates. 2. Attorneys' fees not to be certified to comptroller; allowed out of inheritance taxes in hands of clerk, when suit is dismissed or defend- ant is insolvent. — The attorneys' fees cannot be certified to the comp- troller for payment, where the suit is decided against the clerk, or where the same cannot be collected out of the defendant when ad- judged against him; but in such cases the comptroller is authorized and empowered, in his sound discretion, to allow the clerk to retain such fees out of other inheritance taxes in hands, if any. The fact that the right of action was barred before the suit was commenced may he considered by the comptroller in determining whether to allow a fee, and, if allowed, the amount thereof. Opinion of Assist- ant Attorney-General Faw. Sec. 17. Revenue bond of clerk of county court covers the inheritance tax. — The bond required by law to be given by the clerk of the county court to account for all revenue collected by him for the State shall cover and be liable for the taxes received and collected b>' him by virtue of this act; and if that bond be executed and approved, no other or special bond need be given by him "to account for revenues collected here- under. Obsolete part of statute omitted. —The part of this section pertain- ing to the special bond required of clerks in office when the statute was enacted is omitted as useless and obsolete. — Ed. Sec. 18. Clerk of county court to make payment to State treasurer quarterly; penalty for failure. — It shall be the duty of the clerk of the county court to make return and payment I lo Tennessee Tax Digest. to the treasurer of the State, in the usual method, of all col- lateral inheritancetaxes he shall have received for the previous quarter, stating for what estates paid, on the first day of April, July, October, and January in each year ; and for all such taxes collected by him and not paid over within one month after quarterly returns of the same are or should be made, he shall pay interest by way of penalty at the rate of twelve per centum per annum until paid. Sec. 19. Lien for taxes; limitation of five years for suit. — The lien of the collateral inheritance tax shall continue until the tax is settled and satisfied ; provided, that the said lien shall be limited to the property chargeable therewith; and provided, further, that all collateral inheritance tax [taxes] shall be sued for within five years after they are due and le- gally demandable ; otherwise they shall be presumed to have been paid, and cease to be a lien as against any purchasers of real estate. Sec. 20. Attorney-general to represent clerk and State in supreme court. — In suits arising under this act, which may be carried to the supreme court, the attorney-general of the State shall represent the clerk of the county court and the State in that court. Sec. 21. Executors and administrators are liable on bond; trustee is included. — The bonds of all executors and adminis- trators, which are required to be given by law, shall be liable for the faithful discharge by them of all duties imposed upon them by this act, including the faithful paying over by them of all collateral inheritance taxes that may come to their hands ; and any trustee whose duties are. similar to those of an executor, 'or who has the dividing or disposing of an estate of a decedent, is included in this act under the term " executor." Sec. 22. Duties of the chancery court and of the clerk and master. — In all cases where an estate is being wound up or administered in a chancery court, it shall be the duty of that Inheritance Tax. hi court to see that the collateral inheritance tax is paid to the clerk of the county court, if such estate be liable for such tax, and to see that such tax is paid or retained before a legacy or share or an estate is paid or turned over to the owner; and if any such tax is received by the clerk and master, it shall be ordered paid by him to the county court clerk ; and upon such payment being made by a clerk and master, he shall take duplicate receipts from the county court clerk, and transmit one of them to the comptroller, who shall countersign it and return it, and it shall only be a good voucher to the clerk and master upon its being so countersigned. Sec. 23. Appraiser, oath and compensation of. — The ap- praiser provided for by this act shall be sworn by the county court clerk to faithfully and impartially perform his duty, and to make due returns, in writing, of his action in the premises, with a written statement appended, of the length of time spent by him in appraising the particular property, and the necessary expense, by items, incurred by him traveling to and from the property, if there be such expense ; and for his services the ap- praiser shall receive two dollars per day for the time necessa- rily spent in such service, and his actual traveling expenses in addition, to be paid him by said clerk out of any collateral in- heritance tax coming to his hands, and for which the clerk shall receive credit ; provided, said clerk shall have the right to audit any such cost bill of an appraiser, and to reduce the amount of the same if satisfied it is incorrect, and it shall be his duty to do so. Sections 24 and 25 are omitted as obsolete. — Ed. Sec. 26. County court means monthly court. — The term " county court '' used in this act shall be construed to apply to the county courts presided over and held by the chairman or county judge, and not to the quarterly countycourts. 1. Statute is constitutional. — Succession or inheritance taxation is constitutional. State v. Alston, 10 Pickle, 674; Bailey v. Drane, 12 112 Tennessee Tax Digest. Pickle, 18; Magoun v. Bank, 170 U. S., 287-290, 42 L. ed., 1040, 1041; Knowlton v. Moore, 178, U. S., 55, 44 L. ed., 975. 2. This statute is a complete system upon inheritance taxes. — The inheritance tax law (Acts 1893, ch. 174) forms within itself a complete system of taxation upon the subject of collateral inheritance taxes. Zickler v. Bank, 20 Pickle, 277, 281; Shelton v. Campbell, 1 Gates, 698; Miller v. Wolfe, 7 Gates, 236. 3. Construction of acts. — Acts 1893, ch. 89, sec. 7, was passed and approved on the same day as Acts 1893, ch. 174, but subsequent in point of time; and it, therefore, repealed by implication so much of the first section of the latter act as it was in conflict with. Section 724 of the Gode was the law as enacted by both sections. The ex- emption was not repugnant to the said section 7, and, therefore, re- mained in force. See State v. Alston, 10 Pickle, 678; Bailey v. Drane, 12 Pickle, 16. But see note 1 under sec. 1, ante, p. 92, showing Acts 1893, ch. 89, sec. 7, to be repealed by Acts 1895 (ex. ses.), ch. 4. 4. Acts 1903, ch. 561, is unconstitutional. — Acts 1903, ch. 561, ex- empting charitabl-e, scientific, religious, literary, and educational insti- tutions from the operation of the collateral inheritance and suc- cession tax, is unconstitutional and void, because (1) in the caption it purports to exempt from taxation, while in. the body it undertakes to release debts owing to the State for taxes already accrued; (2) be- cause it attempts to amend a statute without reciting in its caption or body the title or substance of the law sought to be amended; (3) because the exemption is confined to certain institutions which necessarily mean corporations, while property held and used for the same purposes by persons acting as trustees is not exempted. For the foregoing reasons, this statute is thought to be unconstitutional. On the point that the exemption from taxation in favor of corpo- rations alone, and not including individuals, is invalid for discrimina- tion, though otherwise valid, see Daly v. State, 13 Lea, 228; Nashville V. Ward, 16 Lea, 27. On the point that the institutions are corporations, see Nashville v. Ward, 16 Lea, 27, 33, 34, 35; Webster's International Dictionary, under the word *' Institution." Besides, unincorporated associations or institutions cannot receive and hold property, except in the cases provided in section 2562 of the Gode; and for this reason it is clearly evident that the institutions must be corporations. See notes under section 2562 of the Gode. After the foregoing note was piepared (which appears in the Gode Supplement of 1904), the supreme court held said act unconstitu- tional by an unreported opinion in the case of R. A. Speed, Glerk, v. J. W. Dillard, Executor of Bartlett, at Jackson, April term, 1904. This act being unconstitutional, of course Acts 1903, ch. 341, undertaking G ENTERAL Assessment Law. 113 to amend the same, is void as having nothing upon which to oper- ate.— Ed. 5. Legacies to religious, literary, or charitable institutions are not exempt from inheritance tax. — There is no statute exempting legacies in favor of religious, literary, or charitable institutions from the col- lateral inheritance tax. Acts 1903, ch. 561, giving such exemptions, was declared to be unconstitutional by the supreme court in an unre- ported opinion delivered at Jackson at the April term, 1904, in the case of R. A. Speed, Clerk, v. Dillard. Opinion of Attorney-General Gates. 6. History of statutes on inheritance tax. — The first statute upon the subject of inheritance and succession tax was Acts 1891 (ex. ses.),- ch. 25, sec. 6, which was expressly repealed by Acts 1893^ ch. 174, sec. 25, and more certainly by implication by the general provisions of the said statute; the second statute was Acts 1893, ch. 174; the third stat- ute was Acts 1893, ch. 89, sec. 7, which was repealed by implication by Acts 1895 (ex. ses.), ch. 4, repealing by implication the whole of said Acts 1893, ch. 89. By Acts 1899, ch. 432, sec. 1, and by Acts 1901, ch. 128, sec. 1, and by Acts 1903, ch. 257, sec. 1, and by Acts 1907, ch. 541, sec. 1, it is enacted that there shall be levied and collected a collateral inheritance tax, as provided for in Acts 1893, ch. 174, and acts amend- atory thereof. The last clause, "and acts amendatory thereof," is not in Acts 1899, ch, 432, sec. 1, but is in the last three acts. Acts 1903, ch. 561, as amended by Acts 1903, ch. 341, was declared to be unconstitutional, as shown in note 4. The result of all legisla- tion leaves Acts 1893, ch. 174, in force. GENERAL ASSESSMENT LAW. (1907, ch. 602— effective April 15, 1907.) BASIS OF ASSESSMENT. (Sections l-8b.) Section 1. Property subject to taxation. — All property — real, personal, and mixed — shall be assessed for taxation for State, county, and municipal purposes, except such as is declared ex- empt in the next section. Sec. 2. Exemptions enumerated. — The property herein enu- merated and none other shall be exempt from taxation : (1) Public property. — All property of the United States, all property of the State of Tennessee, of any county of said State, 114 Tennessee Tax Digest. or of any incorporated city, town, or taxing district in the State that is used exclusively for public or municipal corporation purposes. See const., art. 2, sec. 28. Property of United States is not subject to tax. — Property of the United States is not subject to State taxation. Van Brocklin v. An- derson, 117 U. S., 151, 29 L. ed., 845 (reversing on this point the case of Anderson v. Van Brocklin, 15 Lea, 33); Railroad v. Price Co., 133 U. S., 504, 505, 33 L. ed., 692. (2) Property of religious, etc., institutions. — iVll property belonging to any religious, charitable, scientific, or educational institutions [institution] when used exclusively for the pur- pose for which said institution was created, or is unimproved and yields no income. All property belonging to such insti- tution used in secular business and competing with a like busi- ness that pays taxes to the State shall be taxed on its whole or partial value in proportion as the same may be used in com- petition with secular business. See const., art. 2, sec. 28. House of Masonic fraternity rented out is assessable for taxes. — That part of a house belonging to a Masonic fraternity rented out for a business house is properly assessable for taxes. Opinion of Attorney-General Gates. (3) Cemeteries and monuments. — All cemeteries, places of burial used as such, and monuments of the dead. Exemption based upon public policy. — This exemption is based upon general public policy, and could be withdrawn at the pleasure of the legislature. There is no constitutional provision for this ex- emption. — Ed. (4) Public roads, etc. — All roads, streets, alleys, and prome- nades where condemned, dedicated, or thrown open for public travel or use free of charge. Exemption based upon constitution. — This exemption is based upon the constitutional provision (art. 2, sec. 28) empowering the legisla- General Assessment Law. 115 turc to exempt frcm taxation property held by the State, counties, cities, or towns, and used exclusively for public purposes, and upon general public policy. — Ed. (5) Crops, products, and manufactures. — -AH growing crops of whatever nature or kind, the direct product of the soil of this State, in the hands of the producer or his immediate vendee, and manufactured articles from the produce of this State in the hands of the manufacturer. Exemption of products of the soil and of manufactured articles from the produce of the State under constitution. — The constitution (art. 2, sec. 28) provides that " the direct product of the soil in the hands of the producer, and his immediate vendee," shall be exempt from taxation, while this statute interpolates the words "of this State " after the word " soil," so as to confine the benefit of the exemp- tion to the direct product of the soil of this State, and to deprive the direct product of the soil of other States of the union of the henefit of the exemption, though it may be the property of citizens and resi- dents of this State by production or immediate purchase from the producer in another State. In connection with this constitutional provision, attention is called to another constitutional provision (in art. 2, sec. 30), that " No article manufactured of the produce of this State shall be taxed otherwise than to pay inspection fees." In this provision the exemption is expressly confined to manufactures of the produce of this State, while in the other provision the exemption is not expressly confined to the direct product of the soil " of this State," but the exemption is given generally and without restriction to the direct product of the soil in the hands of the producer or his imme- diate vendee, without restricting and confining the soil to that of this State. Is the constitutional provision reasonably susceptible of the construction that the soil, from which the exempt product is pro- duced, is confined to the soil of this State? It will also be noticed that in this enactment the words, " in the hands of the manufacturer," are added to the constitutional provision (in art. 2, sec. 30) exempting from taxation the articles manufactured of the produce of this State. In the case of Kurth v. State, 2 Pickle, 136, it is said that the articles manufactured of the produce of this State are exempt from direct tax while in the hands of the manufac- turer. This question was not involved in the case, and was not the point in adjudication; but the statement shows the opinion of the court upon this question. The exemption of manufactures may carry with it the idea of protection to the manufacturer. To construe this provision otherwise would render all such property exempt from tax- ation for all time in whosesoever hands it might come. This evi- dently was not intended, and the exemption is confined to the man- ii6 Tennessee Tax Digest. iifactures while the property of the manufacturer and in his hands. — Ed. (6) One thousand dollars of personalty ; provision as to con- veyances to avoid taxes. — Personal property of the value of one thousand dollars in the hands of each resident taxpayer ; provided, that any conveyance of personal property, including money, bank stock, notes, choses in action, accounts, or other evidence of indebtedness, in trust or otherwise, to any minor by the parent or parents thereof shall be presumed to have been made for the purpose of avoiding the payment of taxes there- on, if it appear that such conveyance afTects enough personal property which, added to the amount of personal property re- maining in the hands of such parent or parents, will exceed in the aggregate the amount heretofore set out as exempt froiri taxation, and it shall be the duty of the assessor to list all such property as the property of the person making such con- veyance or creating- such trust ; provided, that the maker or makers of the tust instrument or conveyance or delivery of such property may appear before the county board of equal- izers and by proof establish the bona fides of such trust or conveyance. 1. Statutory restriction of the exemption of one thousand dollars' worth of personal property from taxation to resident taxpayers is void. — The State constitution (art. 2, sec. 28) exempts from taxation one thousand dollars' worth of personal property in the hands of each taxpayer, but this statute undertakes to restrict and limit the exemp- tion to resident taxpayers and to exclude nonresident taxpayers from the benefit of the constitutional exemption by interpolating the word " resident " before the word " taxpayer." The constitution makes no distinction between resident and non- resident taxpayers, and the exemption applies to all taxpayers, regard- less of residence. This constitutional provision is self-executing, and must be enforced regardless of legislative action or nonaction. The restriction or limitation so attempted to be foisted or interpolated in this statute is invalid and void, because violative of said constitutional provision. It is true that in the case of Bank v. Morristown, 9 Pickle, 208, it is said that each citizen taxpayer is entitled to the exemption. But this was not the point in the decision, and the word " citizen " was doubt- General Assessment Law. 117 less used for the word "person; " and there are expressions indicating that all persons are entitled to the exemption, regardless of residence. It is apprehended that even if the State constitution had expressly, or by necessary implication, limited or restricted the said exemption to resident taxpayers and excluded nonresident taxpayers from the benefits thereof, such restriction or limitation would have been void and noneffective as against citizens of other States of the union, be- cause in conflict with the constitution of the United States, which provides (in art. 4, sec. 2, clause 1) that *' The citizens of each State ^hall be entitled to all the privileges and immunities of citizens in the several States,"' and (in the 14th am., sec. 1, clause 2) that " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," and (in the first clause of the 14th am.) declares that all citizens of the United States are citi- zens of the State wherein they reside, though such a constitutional restriction or limitation would have been valid and effective as against nonresident taxpayers who were not citizens of the United States or of one of the several States of the union. See Blake v. McClung, 172 U. S., 239, 43 L. ed., 432; Blake v. McClung, 176 U. S., 59, 44 L. ed., 371 ; Louisville Safety Vault & Trust Co. v. Railroad, 14 L. R. A., 579, and note. 2. Claim of exemption from taxation must be made before board of equalization, when. — Claim of exemption from taxation must be made before the board of equalization to correct an alleged improper assessment, and cannot be made by a suit to recover the taxes paid under protest, where the taxpayer did not make such claim before the board of equalization. Opinion of Assistant Attorney-General Faw. See Shelby Co. v. Railroad, 16 Lea, 401, 412, 413; Tomlinson v. Board, 4 Pickle, 14; Grundy Co. v. Coal Co., 10 Pickle, 305; Ward v. Alsup, 16 Pickle, 619, 744-750; Carroll v. Alsup, 23 Pickle, 257; Bank v. Mem- phis, 23 Pickle, 12; Staples v. Brown, 5 Gates, 647, 652; Code, sees. 1059-1068, and notes. It does not appear, from the above opinion, upon what the claim of exemption was based. It was probably based upon the constitutional exemption of one thousand dollars' worth of personalty (const., art. 2, sec. 28). In such case, where the assess- ment upon its face shows a valuation, which might or might not in- clude the exemption, a question of valuation alone may be involved in a suit to recover taxes paid on exempt property; and in such case it is clear that the question should have been made before the board of equalization, as shown by the case of Ward v. Alsup, 16 Pickle, 619, 744-750. (7) Charter and contract exemptions. — All property pro- tected by valid charter or contract exemption. 118 Tennessee Tax Digest. Sec. 3. Assessments made, how often. — In order to provide revenue for State, county, and municipal purposes, personal property, privileges, and polls shall be assessed annually, and real estate shall be assessed every two years. The first assess- ment of real estate under this act shall be made in the year 1908. Sec. 4. Assessment at " actual cash value," which is defined. — All property of every kind shall be assessed at its actual cash value. The term " actual cash value," whenever used in this act, is hereby defined to mean the amount of money the property would sell for, if sold at a fair, voluntary sale. See sec. 6, and note, post, p. 120. Sec. 5. Basis of assessment. — The basis of all assessments shall be as follows, to wit : (1) As of tenth of January, to owners or unknown owners. — To assess the property to the person or persons owning or claiming to own the same on the tenth day of January of the year for which the assessment is made, if known ; if not, to unknown owners. (2) Assessment of personal representatives, where. — To as- ess the property held by executors and administrators in the county, district, or ward in which the decedent resided at the time of death until such shall have been distributed ; but if the deceased lived in another State, then the property shall be assessed where the personal representative resides. (3) Trustees and guardians assessed, where. — To assess personal property held by trustees and guardians of minors, married women, and lunatics to each guardian or trustee in the county, ward, or district where such minor, married woman, or lunatic resides, if a resident of the State; and if a nonresident, then in the county, ward, or civil district in which the guardian or trustee resides ; provided, that guardian funds shall be assessed in the county where the guardian having control thereof renders his annual settlement. See sec. 16, post, p. 136. General Assessment Law. 119 Personalty assessed as intangible.— Intangible personal property is assessable wlicre the owner has his domicile, and this statute was not needed for this; but the statute includes also tangible personal prop- erty, which was before assessable where it was situated. Grundy Co. V. Coal Co.. 10 Pickle, 309-322 (syl. 7 and 8), and cases cited. (4) Banks and corporations not assessable by the railroad commissioners ; corporations in cities are assessable there ; realty and tangible personalty are assessable where situated. — All stocks in banks, savings banks, or banking associations, loan companies, trust companies, insurance companies, invest- ment companies, and all other corporations not assessable by the railroad commissioners shall be assessed as hereinafter pro- vided in sections [21-25] pertaining to the same. However, the property of every street railroad, gas and electric light com- panies, including their franchises used within any town, city, or taxing district where the office of the company is located outside of such incorporated city or town or taxing district, but with the main property within the city, shall be taxed in the city, town, or taxing district as if the office was situ- ated within the city limits, and the property, including fran- chises of the corporations and joint stock companies that lie wholly or mainly within any incorporated city, taxing district, or town, or whose chief business is within any incorporated city, taxing district, or town, shall be assessed for taxation in such city, taxing district, or town ; provided, that all realty and tangible personalty shall be taxed in the district where situ- ated. (5) Mineral, timber, or other interest in land to be assessed to the owner thereof as land. — Hereafter al l minera l^ and tim- berjnterests and all other interests of wjhatsoever kind or_char- a^cter, whetheii _for life o r a_term oO!£axs.^-ilLJLeal estate, ^i n- cludin g the interest w hich the lesse e may have in a nd to the impro veme ntS-£r££,t£d-UpQa land where the fee, reversLoru^or remainder therein is exempt to the owner, ajid which said ijiter- est_orjriterestsJs_orjL^^ I20 Tennessee Tax Digest. hold, shall be assessed to the owner thereof separately from the. other interests in such real estate, which other interest shall be assessed to the owner thereof, all of which shall be assessed as real estate. Statutes providing for assessment of mineral, timber, and other interests in land do not require a remainder estate to be assessed separately to the remainderman. — Our statutes (Acts 1895, ch. 120, sec. 6, subsec. 7; Acts 1897, ch. 1, sec. 4, subsec. 6; Acts 1899, ch. 435, sec. 5, subsec. 5; Acts 1901, ch, 174, sec, 5, subsec, 5; Acts 1903, ch. 258, sec. 5, subsec. 5), providing for the assessment of all mineral, timber, and other interests in real estate to the owner thereof, to be assessed as real estate, have no application to lands other than those containing mineral, timber, and other like interests owned separately from the general freehold, and do not require that the remainder estate in land shall be assessed to the remainderman. Hadley v. Had- ley, 6 Gates, 156, 163, 164. The above statute is not materially different from the other statutes construed in this case, and should be construed in the same way. — Ed. Sec. 6. Assessment of real estate must show what. — In as- sessing real estate, the following shall be shown : (1) The description of the property. (2) The name of the true owner or owners, if known, (3) The actual cash value of the land or lot, including the improvements, and also all interests in real estate or improve- ments thereon assessable as under subsection 5, section 5 of this act. (4) The actual cash value of mills, gins, manufactories, dis- tilleries, breweries, foundries, and other buildings for similar purposes. 1. Basis of valuations is the actual cash value. — The actual cash value is the only practicable basis upon which taxes can be made equal and uniform, and this is clearly the constitutional requirement and legislative intent, and should be the effort of the court as well as taxpayers. Carroll v. Alsup, 23 Pickle, 267, 282-293, and especially 292. The " actual cash value " is defined to mean the amount of money the property would sell for, if sold at a fair, voluntary sale. See sec, 4, ante, p. 118. 2. Vital irregularities and insufficiencies render assessments and sales void. — Tax assessment is void for vital irregularities and insuffi- General Assessment Law. 121 ciency, and a tax sale thereunder is void. Dunn v. Dunn, 15 Pickle, 598, 612. The tax assessment and list of tax sales must show items and amounts in dollars and cents. Mere figures without more are insufficient, and render a tax sale void. Hamilton v. ^Gaslight Co., 7 Gates, 153. Sec. 7. Rules governing in assessment of real estate, parol testimony to supply description. — In describing real estate, the following rules shall be observed : The number of town lots (and blocks) of the property as a whole or a part shall be given ; the name of the street, avenue, alley, or road on which it fronts, and the front feet thereof shall be given, unless the size, dimensions, and quantity can be more conveniently given in acres, then to be given in acres. If the property is a part of any known subdivision, its size, dimensions, quantity, and front feet or acres shall be given. In describing tracts of land, when it can be done, the surveyor's district, range, township, Section, and sectional subdivision shall be designated and the number of acres. The lands by which the described tract is bounded shall also be given in the assessment. When part of a known tract, subdivision, lot, or block of land is assessed by a description which identifies it, any other part of it which is assessed, but not so identified, shall be held to embrace all of such tract, subdivision, lot, or block not included in the part identified ; but a failure to assess according to this act shall not in any wise vitiate the assessment or sale of lands. under the same, and parol testimony shall always be admissible to supply a description of land on the assessment roll or in con- veyance for taxes, where such testimony will show what land was assessed and sold, and there is enough in the description on the roll or conveyance to be applied to a particular tract or parcel of land by aid of such testimony. Sec. 8. Personal property to be assessed under following classification. — All personal property of every kind shall be assessed under the following classification : Class 1. Household goods. — Household and kitchen furni- ture, tableware, libraries, jewelry, sewing machines, guns, 122 Tennessee Tax Digest. more than one gun, musical instruments, and all other personal property of a similar character. Class 2. Implements, vehicles, etc. — Farming implements, machinery, wheeled vehicles, automobiles, tools of all kinds, and all other personal property of a like character. Class 3. Live stock. — All kinds of live stock, including dogs. Class 4. Water craft. — Steamboats, ferryboats, and other kinds of water craft. See Class 10, below. Steamboat owned by railroad not to be assessed by county assessor, when. — A steamboat owned by a railroad and used by it exclusively in transferring freight and passengers across a river on its line of road cannot be assessed for taxation by a county tax assessor, but can be assessed by the assessors of railroad properties alone. Railroad v. Williams, 17 Pickle, 146. Class 5. Incomes. — The amount of income derived" from United States bonds and all other stocks and bonds not taxed ad valorem. Class 6. Stocks and bonds. — All bonds, except United States bonds, and all shares of stock, except when the corporate prop- erty or capital stock is assessed in lieu of the shares of stock as hereinafter provided in section 22 [see sections 22a-22c] of this act. Class 7. Evidences of indebtedness, money, etc. — Notes, duebills, choses in action, accounts, mortgages, or any other evidence of indebtedness, and money on hand or on deposit or invested in any manner in this State or elsewhere not other- wise assessed. Class 8. All other personalty. — All other personal property not hereinbefore designated. Class 9. Merchants' property and capital. — All personal property which is a part of the capital invested in the busi- General Assessment Law. 123 ness of a merchant, commission or auction merchant, factors, or manufacturers shall not be assessed separately as person- alty, but shall be assessed as part of the capital as provided in section 26 of* this act. Class 10. Water craft assessed, how. — In assessing steam- boats and ferryboats, boats navigating within streams within or bordering on this State, the same shall only be assessed to the extent of the interest therein of any person, company, cor- poration, or firm residing or doing business in this State. See Class 4, above. Sec. 8a. Personalty to be assessed, though deposited, incum- bered, transferred, pledged, loaned, out of owner's possession, or out of this State. — The fact that any personal property may be deposited, incumbered, or transferred or pledged as col- lateral or loaned or out of the possession of the owner, whether the same be in or out of this State, shall not in any wise excuse the same from being listed and reported for taxation. Sec. 8b. Taxpayer to state insurance on personalty. — In as- sessing personal property, the taxpayer shall, in making out his tax schedule, state how much insurance he carries on his personal property. TAX ASSESSORS. (Sections 9-20d.) Sec. 9. (1) Term of present assessors to continue until Jan- uary 1, 1909. — The assessors [elected] at the regular August election, 1904, shall hold their office for the term of four years, beginning January 1, 1905. (2) Vacancies filled, how. — In case of vacancies, the county court at its first session after the vacancy occurs shall elect an assessor, who shall hold office until the first of January follow- ing the next regular August election. The assessor shall be elected by the qualified voters at the first regular August elec- tion coming after the vacancy, and he shall hold from the first 124 TENmcssEE Tax Digest. day of the following January to the close of the term for which his predecessor was elected ; provided, that if the vacancy oc- cur between the January and April terms of the county court, the county judge or chairman shall appoint. (3) County assessors; district assessors abolished, when. — There shall be elected one tax assessor for the whole county of each and every county in the State. The office of civil dis- trict assessor is hereby abolished ; provided, the abolition of the district assessors shall not become effective until the next regular August election. (4) Members of county court are not eligible as assessors. — No member of the county court shall be eligible to hold the office of assessor. (5) Compensation of assessors to be paid by counties. — In counties having a population of 120,000 or over according to the federal census of 1900 or any subsequent census, the county assessor shall be paid out of the county treasury a salary of $4,000. In counties having a population of over 60,000 and less than 120,000 according to the federal census of 1900 or any subsequent census, the county assessor shall be paid out of the county treasury a salary of $2,500. In all other coun- ties, the salary of the assessor shall be fixed by the county court, either at the January or April terms of the county court preceding the election at which the county assessor is to be elected ; and when so fixed, the same shall not be changed dur- ing the four years for which the assessor is to be elected, to be paid out of the county treasury ; but in no case shall the compensation exceed, for the assessor and his deputies, twen- ty-five cents for each person assessed with real and personal estate (the personal exceeding $1,000) and poll, twenty-five cents for each person assessed with personal estate only (ex- ceeding $1,000 in value) and poll, fifteen cents for each person assessed with real estate only, and fifteen cents for each ad- ditional assessment of separate realty, twenty-five cents for General Assessment Law. 125 each person assessed with real estate and poll, fifteen cents for each person assessed with personal estate only (exceeding $1,- 000 in value), twenty cents [for] each person assessed with real and personal estate only (exceeding $1,000 in value), and five cents for each person legally listed for a poll only. Commission does not invalidate assessment. — Assessments are not void because the assessor is interested in making them high so as to increase his compensation, where he is paid a commission on the as- sessed valuation. Grundy Co. v. Coal Co., 10 Pickle, 295, 323-327; Henley v. State, 14 Pickle, 703. (5a) Assessor to deduct the one thousand dollar exemption of personalty. — It shall be the duty of the assessor to take [de- duct] the $1,000 exempt on [exemption of] personal property on all exemption [assessment] blanks. (6) Assessors may appoint deputies, when ; oath, compensa- tion, duties, liabilities. — Whenever any county assessor finds that he cannot, by devoting his entire time and attention to the duties of the office, make the assessment of property and polls as required by this act, he is hereby authorized to ap- point one or more deputies, with the same powers, duties, and liabilities of the assessor, and they shall take the same oath re- quired of the assessor. The assessor shall be liable for any malfeasance, misfeasance, or nonfeasance of his deputies. No deputies by district assessors. — District assessors have no power, or authority, to appoint deputies, and must in person perform the duties imposed upon them by law. The power to appoint depu- ties is confined to county assessors. Opinion of Attorney-General Gates. (6a) Assessor's affidavit as to deputies and compensation in certain counties. — In counties of 60,000 inhabitants or over according to the federal census of 1900 or any subsequent cen- sus the assessor shall, within ten days after the end of each month, make affidavit that the employment of such additional help was necessary, and shall give the name of each deputy and the amount of his compensation, and that such compensa- 126 Tennessee Tax Digest. tion is reasonable. Said affidavit shall be filed with the county court clerk and become a part of the public record. In no case shall the aggregate annual compensation of the deputies of any county assessor exceed the salary of the county assessor by more than fifty per cent. Sec. 10. Assessor's bond. — Each county assessor shall, on or before the first day of January next succeeding his election, enter into a bond, with two or more good and sufficient securi- ties, payable to the State of Tennessee, in the sum of ten thou- sand dollars, to be approved by the county judge or chairman of the county court, conditioned that he shall impartially, hon- estly, and to the best of his knowledge and ability assess all properties at their actual cash values ; impartially and faith- fully discharge the duties of his office, obey the requirements of his oath of office and of the assessment laws of the State, and pay to the State of Tennessee all penalties of every kind and character incurred by him (or by his deputy, in case of county assessor) and imposed by this act, and also to be lia- ble for any willful, knowing, or negligent failure by which any property subject to taxation shall be or remain unassessed or be assessed at less than its actual cash value. Sec. 10a. Assessor's oath. — Each assessor shall take and sub- scribe to the following oath of office before the judge or chair- man of the county court, which said oath shall be attached to and filed with said bond in the office of the clerk of the county court, viz. : " I, , assessor (or deputy assessor) of property and polls of the county of , State of Tennessee, do solemnly swear (or affirm) that I will report privileges ; that I will assess all property, real and personal and mixed, at its actual cash value, and all polls of said county of , to the best of my knowl- edge and ability, without fear, favor, or afifection ; that I will administer the oath or affirmation required by law, or have the same administered, to all persons listing property; that I will diligently inquire, so that no person shall be passed over or General Assessment Law. 127 shall fail to have an opportunity to give a list of his taxable property, and furnish taxpayers schedules as required by law ; that I will truly report all persons who shall fail or refuse to list their taxable property or who have to my knowledge given in a false or fraudulent list ; and that I will faithfully, impar- tially, and honestly discharge my duties as assessor according to law to the best of my knowledge and ability ; and that I will administer the oath in person to all property owners as the law requires, when practicable ; and that I will not assess or list any person with property or polls solely by substitution or copy from former assessment, so help me God. , as- sessor." ** Sworn to and subscribed before me this day of ." Sec. 10b. Oath of deputy. — Each deputy assessor shall like- wise take his oath and file the same with the county court clerk before entering upon the discharge of his duties. Sec. 10c. Assessor's oath to assessment list. — Each assessor, when he makes his report of his assessment list to the county court clerk hereinafter provided, shall accompany the same with the following oath, to be made and subscribed to before the judge or chairman of the county court and filed in the of- fice of the clerk of the county court, viz. : '' I, , assessor o'f the county of , State of Tennessee, do solemnly swear (or affirm) that I have set out in the fore- going assessment list all the property, real and personal, and all the privileges and polls in said county of as far as. ascertainable to the true owners thereof, and that I have re- quired lists to be filled and filed and sworn to by all property holders or their agents or attorneys and reported such as have not done so to the district attorney, and reported lists of all parties liable for polls, and that I have estimated the value of all property, real and personal or mixed, at its actual cash value as prescribed by law to the best of my knowledge and ability, without fear, fa\^r, or affection ; and that I have faith- fully discharged my duties and kept my oath of office as as- 128 Tennessee Tax Digest. sessor according to law to the best of my knowledge and abil- ity, so help me God." " Sworn to and subscribed before me this day of ." Sec. lOd. Oath of deputy upon completion of his work. — Each deputy assessor shall take and file with the county court clerk said oath of office upon completion of his duties as as- sessor. Sec. lOe. Unlawful not to take the prescribed oaths. — It is hereby declared unlawful for any assessor or deputy assessor to enter upon or undertake the performance of the duties of an assessor without first taking said preliminary oath of office, or to 'fail, neglect, or refuse to take and accompany the said report of his assessment list with the subsequent oath here- tofore prescribed. Sec. lOf. Duty of county judge, chairman, and clerk to re- port failure to take oaths. — It shall be the duty of the judge or chairman of the county court and of the clerk of the county court to promptly report to the district attorney or to a reve- nue agent of the State any failure, neglect, or refusal of any assessor [or] deputy assessor to comply with the foregoing re- quirements of this act. Sec. lOg. Duty of assessors in making assessments. — It shall be unlawful for any assessor or deputy to willfully, know- ingly, or negligently permit to [or] allow any property sub- ject to taxation to be or remain unassessed or omitted from as- sessment, or to willfully, knowingly, or negligently assess any property at less than its cash value, or to assess any property or polls solely by substitution or copy from former assessment. Sec. lOh. Assessors to report to district attorney list of tax- payers not taking oath nor returning schedules. — It shall be the duty of each assessor to make out a full and complete list and transmit the same to the district attorney of the district of all taxpayers within his jurisdiction who shall have failed General Assessment Law. 129 or refused to take the oath or affirmation required by law to tax schedules, and also of all taxpayers who shall have refused, failed, or neglected to return as prescribed by law such tax schedules to the assessor. Sec. lOi. List to be made, when; unlawful not to make; dis- trict attorney to prosecute persons listed.— Such lists shall be prepared and forwarded at the same time the assessment lists are returnable by law to the county court clerk. It shall be the duty of the district- attorney, upon the reception of such lists transmitted to him by the assessor, to ex efficio prosecute such persons as are included in the same for the misdemeanor prescribed by this act. It shall be unlawful for any assessor to fail, refuse, or neglect to make out such list and transmit the .same to the district attorney as herein required. Sec. lOj. Failure of district attorney to prosecute is a misde- meanor in office. — It shall be a misdemeanor in office for the district attorne}^ to negligently fail or refuse to prosecute such persons reported to him in such list. Sec. 10k. Unlawful to assess in wrong name. — It shall be unlawful for any assessor or deputy to willfully, knowingly, or negligently assess any property subject to taxation in the names or the initials of any other than the real and true owner thereof, and for each of such offenses he shall be fined not less than five dollars ($5) nor more than twenty dollars ($20). Sec. 101. Unlawful for assessors not to observe this act. — It shall be unlawful for any assessor or deputy to fail, refuse, or neglect to perform, obey, and observe any duties or require- ments of this act not above declared unlawful. Sec. 10m. Misdemeanor in office for county judge or chair- man or county court clerk* not to comply with law as to bond of assessor. — Before any county judge or chairman shall ap- prove or accept of any bond of any assessor, he shall read the bond required of the assessor to the assessor and his sureties, 5 130 Tennessee Tax Digest. and direct their attention to the duties and penalties prescribed by this act. It is hereby declared a misdemeanor in office for any county court clerk to fail or neglect to keep and preserve such bonds in a well bound book, or for the coimty judge or chairman to accept or approve of any bond herein designated without complying with the foregoing provisions. Sec. 11. Assessor to add up all columns before returning books to clerk. — It shall be the duty of each assessor to add up all columns, showing number of acres assessed and value, number of town lots assessed and their value, value of personal property assessed, and total value of all property assessed in his district or ward, before his books shall be received by the clerk. Sec. 11a. New bonds, when; failure creates vacancy; acting without bond is unlawful. — Each county assessor of the State shall, on or before the first day of January following their elec- tion, execute and enter into a new bond in the amounts now provided by law and conditioned as directed in this act ; and it shall be unlawful after said date for any assessor to perform the duties of assessor without giving such bond ; and in case such bond is not made by said date, his office shall become va- cant and be filled as is now or may then be provided by law. Sec. 12. Duties of assessors in assessing property. — It shall be the duty of the assessor in person or by deputy, viz. : (1) To examine realty; fine for failure. — To go on the prem- ises and examine realty to be assessed, and for failure so to do shall be fined not less than $5 and not more than $10 in each case. (2) To see personally each taxpayer and take his schedule. — To personally see each taxpayer residing in his county or his agent or attorney and take his personal statement (filled out in the blank schedule hereafter mentioned) of all property of such taxpayer, whether the same be real, personal, or mixed, without regard to any exemptions. General Assessment Law. 131 (2a) To return nonresident taxpayers, or those not found. — If any taxpayer is a nonresident, or if the owner cannot be found or seen after diligent search, the assessor shall fill out such statement, sign, and indorse on the same that the tax- payer could not be found after diligent search. (2b) To examine other persons under oath in such cases. — In such case it shall be his duty to examine any person whom he may have reason to believe has any knowledge or informa- tion as to the property of the taxpayer. For such purpose he shall have the power to administer oaths and compel any wit- ness to answer, and it shall be the duty of any person to an- swer when called upon to do so by any assessor or his deputy. (2c) To examine taxpayer and others under oath when he fails to list, or conceals property. — Assessors and deputy as- sessors shall have like powers and perform like duties when there is any reason to believe or suspect any taxpayer has withheld or concealed from such schedule any property or failed to list any property, which may be done by questions put to the taxpayer, his agent, attorney, or any other person. Sec. 12a. Falsely swearing to schedule or statement by wit- ness is perjury. — Any person swearing falsely or corruptly or knowingly in any material statement in such schedule or to any statement made as a witness to such assessor or deputy asses- sor shall be guilty of perjury and indicted for the same. Sec. 12b. Witness refusing to take oath or make answer is guilty of a misdemeanor; fine. — Any witness refusing to take such oath or make such answers when called upon by the assessor to do so shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than $10 nor more than $1,000. Sec. 12c. Statements by witness or property holder to be written and filed. — Such assessor or deputy assessor shall re- duce to writing such statements as may be made by any prop- 132 Tennessee Tax Digest. erty holder or witness under the foregoing" provisions and lile the same with the county court clerk. Sec. 12d. Taxpayer's schedule to be filled out and sworn to ; duty and power of assessor. — It shall be the duty of the tax- payer, his agent, or attorney to fill out, or have the assessor or deputy to fill out for him, the schedule hereafter provided for, and the assessor or deputy assessor shall require an oath to be made to the same, personally before him or before some jus- tice of the peace, by said taxpayer or the agent or attorney of such taxpayer, to the correctness of the items and the questions therein, and that said schedule fully and truly and without evasion, reservation, or concealment sets out all properties of every kind and character of the taxpayer or property holder therein named, and for said purpose each assessor and deputy assessor is invested with the powers to administer such oath. Sec. 12e. Assessment to be made upon failure to fill out and return schedule. — If any taxpayer shall fail, neglect, or refuse to fill out said schedule and each question fully and according to law, sign, and swear (or afiirm) to the same and return it to the assessor not later than the 20th day of April of each year, then the assessor shall make the assessment against such tax- payer. Sec. 12f. Names to be noted as assessed without schedule, and notice to taxpayer noted. — The assessor shall note upon his books opposite the names of taxpayers who have refused, neglected, or failed to fill out and return said schedule and whom the assessor has assessed for such failure, neglect, or refusal. Such taxpayers shall be notified thereof by said as- sessor or his deputies at least five days before the county board of equalization commences its annual session, and said tax- payers must show good cause why said assessment should not be made. An entry of the notice shall be made, together with the date thereof, on the assessor's books opposite the tax- payer's name. General Assessment Law. 133 Sec. 12g. Such assessment is conclusive against taxpayer not appearing before assessor or beard of equalization.-^If the taxpayer fails, neglects, or refuses to appear before the as- sessor or the board of equalization prior to its final adjourn- ment, then the amount thus assessed by the assessor shall be conclusive against the taxpayer, and said taxpayer shall be required to pay the taxes on said amount ; provided, however, nothing herein shall be taken as conclusive against the State, county, or municipality. Sec. 12h. Oath to schedule; assessor, not taxpayer, to value list. — Said oath shall be entered on such schedule beneath the same and subscribed and sworn to hy the party listing; but nothing in this act shall be construed as requiring the person listing the property to make oath to the value of the property, but shall be the duty of such assessor to examine into and compute the actual cash value for taxation of the property con- tained in the list made out b}^ himself or the taxpayer or the agent or attorney of the taxpayer. Sec. 12i. Misdemeanor to fail to fill out, swear to, or to re- turn schedule; fine. — It shall be a misdemeanor for any tax- payer or the attorney or agent of any taxpayer to fail, neglect, or refuse to fill out or have filled out the schedule or list here- after provided for, or fails, refuses, or neglects [to fail, refuse, or neglect] to take and subscribe to the oath or affirmation re- quired to such tax schedules, or to fail to return the same to the assessor as prescribed by law, which misdemeanor shall, upon conviction, be punishable by a fine of not less than $10 nor more than $50. Sec. 12j. Assessor to furnish schedule and require it to be filled out and sworn to. — It shall be the duty of the assessor or deputy assessor to furnish taxpayers with the schedule here- after provided for, and demand or require such taxpayer to fill out such schedule and to take and subscribe to the oath re- quired to be made to the 'same. 134 Tennessee Tax Digest. Sec. 13. Property to be assessed separately and in rotation in districts or wards. — The assessor shall assess the property in each district and ward separately, and tO' this end he shall proceed to assess the property in a district or ward, com- mencing at some corner or outside point of the district or ward and assess it in rotation as it joins or lies contiguous to the property first assessed, and shall proceed in the regular man- ner until he shall have made the circuit of the district or ward, and he shall enter such assessment in suitable books (by dis- tricts and wards) to be furnished by the county court. Sec. 13a. New, county assessment to be copied for old county to pay debt or interest in old county. — The assessment made by [the district assessors or*] the county assessors, as the case may be,, of the new county on the real and personal property in the districts or parts of districts which formerly constituted a part of the old county, and which was owing a debt at the time of the formation of said new county, shall be and consti- tute the assessment for said old county for the purpose of tax- ation to pay. said debt or the interest thereon; and it shall be the duty of the county court clerk in and for said new county to furnish said assessment to the county court clerk of said old county within twenty days after same has been passed upon by the board of equalization of said new county; pro- vided, that said assessment shall be copied by said county court clerk of said old county in the office of the county court clerk of said new county, and the copy of said assessment when so made shall be legal, valid, and binding assessment when so made in all respects and to all intents and purposes as is the as- sessment in the said counties from which the same are [is] copied. See Acts 1905, ch. 411, post, p. 260. *Omission supplied. — By sec. 9 (3), ante, p. 124, the district assess- ors are abolished to take effect at the next regular August election; and in the meantime they will continue in office, as heretofore, and should not have been omitted from this section. The omission is shown in brackets in the third line. — E3. General Assessment Law. 135 Sec. 14. Plaintiff taxed with costs, and lien declared in judg- ment for taxes, where the note, bill, bond, or chose in action or renewal sued on was not given in for taxation; unsettled accounts excepted. — In any suit hereafter brought in any of the courts of this State upon any note, bill, bond, or other chose in action subject to taxation under the provisions of this act, it shall be competent for any defendant to such action to allege and show in defense that such note, bill, bond, or other chose in action was not given in or included in the own- er's assessment for taxation for the preceding year, and upon such defense being established to the satisfaction of the justice, court, or judge trying the case, the owner or holder bringing suit upon said note, bond, bill, or other chose in action shall be taxed with all the court costs of the case, and the said court shall declare in rendering such judgment a lien in favor of the State, county, or municipality to which said unpaid taxes are shown to be payable, said lien to be discharged by a release on the docket of said court showing the payment of the said taxes, said release to be executed by the proper tax collecting officer or officers ; provided, all renewals of notes, bills, bonds, or other choses in action shall be treated as one continuous debt ; and provided, further, that unsettled accounts shall not be -included in this section. Sec. 15. Comptroller to prepare and furnish schedules for county court clerks to furnish assessors. — It is hereby made the duty of the comptroller of the treasury of the State to pre- pare assessment schedules and furnish the same to the various county court clerks in this State, who shall in turn furnish the same to the assessor. The schedules shall be so prepared as to conform to the different classifications of assessments provided for in this act. Sec. 15a. Schedules shall contain what questions. — The schedules shall contain, with others, the following questions: (1) How many acres of land do you own? In what civil or 136 Tennessee Tax Digest. surveyor's district is it located? How bounded? What im- provements thereon ? (2) How many town lots do you own? In what town lo- cated? What is the number of front feet and depth of your lots? Are they improved? (3) Has your lot or land been sold at a fair, voluntary sale within the last two years ? What was the sale value and terms of sale? (4) The classification of personalty as set out in section 8 of this act. What is your age? What is your true name and initials? What is your color (** w " for " white " and " c " for " colored ") ? Are you liable for poll tax ? If not, give the special reasons why not. Sec. 15b. Schedules for corporate property and bank stock. — Said comptroller shall, in conformity with the provisions of this act, in like manner prepare and furnish schedules to be used by the assessor in assessing corporate property and shares of bank stock as set out in sections 21, 22, and 24 of this act. Sec. 15c. Prescribed oaths to be appended to all schedules. — All schedules prepared by the comptroller in conformity with this act shall have appended to the schedule the respective oaths prescribed by this act. Sec. 16. Assessment returns of trust estates for taxation to be made by fiduciaries. — Persons acting as executors, admin- istrators, guardians, agents, attorneys, clerks of any court, or in any fiduciary capacity whatever, shall make a return of the property, moneys, credits, and efifects held or controlled by them in any of said capacities, separate from their individual returns, showing the names of the person or persons for whose use and benefit such is held, and the same shall be listed sep- arately for taxation ; provided, that every such trust estate shall be entitled to the same exemption as if owned by a single taxpayer. See sec. 5, subsecs. 2 and 3, ante, p. 118. GeiNeral Assessment Law. 137 Taxation of funds held by clerk and master not allowed, when. — Under this law, the funds arising from the sale of an insolvent's prop- erty, and held temporarily by a clerk and master, in his official capac- ity, for distribution among creditors, are not subject to taxation. Schoollield v. Schoolfield, 19 Pickle, 63. Sec. 17. Failure to return schedule to be reported to county judge or chairman; his power to cite and examine party, and make assessment. — In all cases where any person or persons acting in a fiduciary capacity, company, firm, corporation, agent, or attorney shall fail, neglect, or refuse to return to the assessor the schedule of property for taxation as provided for in this act, the assessor shall report in writing the fact to the chairman or judge of the county court, who shall cite the per- son, agent, attorney, firm, officer, officers of the company or cor- poration before him, and shall demand of them to answer the questions heretofore provided in this act under oath or affirmation, and shall have power tO' punish for contempt for failure to answer ; and if the refusal to answer is persisted in, the judge or chairman shall make such an assessment in such cases from the best information that he can obtain, and such assessment shall be prima facie evidence as tO' the value and ownership of the property, and the costs accruing by proceed- ings under this section shall be paid by and be charged against the taxpayers and upon the property. Sec. 18. Assessment list to be returned to county court clerk, when; records of his office. — The assessor shall make a report to the county court clerk of the assessment list on or before the first Monday in June of each year as to the person- alty, privileges, and polls, and on or before the first Monday in June every two years as to realty, and turn over his books to said clerk, which shall be filed by him and carefully pre- served, to be acted upon by the board of equalization to be ap- pointed as hereinafter provided [in sections 32-32z], and said books and lists are to be preserved as a part of the office rec- ords of the office of said clerk. 138 Tennessee Tax Digest. Sec. 19. Reassessments, where improvements are destroyed. — If any improvement to the value of $200 or more on any real estate shall be destroyed by fire or flood or other casualty, then the owner thereof may, on his application to the county court clerk, have the real estate so damaged reassessed by the assessor, and such reassessed valuation shall be substituted on the assessment roll in place of the original assessment. Sec. 20. Reassessments, where permanent improvements have been made. — It shall be the duty of the assessor in mak- ing his annual assessment of personal property to ascertain whether or not any permanent improvements have been placed upon any real estate previously assessed, so as to increase the value thereof to the amount of $200 or more, and in such case he shall reassess such real estate, taking into consideration the value thereof resulting from permanent improvements, which assessments shall in all cases be made as of the tenth day of January of the year of which the assessment is made. Sec. 20a. Reassessments, where there has been a change of ownership, and report thereof. — The assessor shall also, in making his annual assessments of personal property, ascertain all changes in the ownership of real estate since the last as- sessment of such real estate, and in such cases he shall report with his assessment the name of the previous owner of such real estate and the name of the present owner thereof. Sec. 20b. No reassessment, where the change of ownership is entire, but change to be noted. — If the change in ownership applies to the entire real estate, no change shall be made in the assessed value thereof, but the change of ownership shall be noted upon the assessor's books and the trustee's tax book. Sec. 20c. Reassessments, where there has been a change of ownership of real estate in part, or divisions, and where im- provements have been made or destroyed. — If a part of the real estate in any case has changed ownership or has different owners than that shown in the former assessment, then the General Assessment Law. 139 assessor shall fix the value of each owner in such real estate, the aggregate of all of which shall be the same as the assess- ment to the original owner, unless said real estate or some portion thereof has been enhanced by permanent improve- ments or its value decreased by the destruction of permanent improvejnents, in which case a reassessment shall be made, so as to the value as of the tenth day of January for which the assessment is made, and all changes in ownership of real es- tate, together with the description of the real estate after the change of ownership, shall be noted by the clerk of the county court on the assessment roll, and also upon the trustee's tax books. Sec. 20d. Error in transcription corrected by certificate of assessor. — Whenever there is an error in the books of a trus- tee or municipal collector in the valuation or description of property where the same occurs in an error in transcribing the books, or other error material to valuation or description, the assessor shall certify the facts to the trustee or municipal collector, who shall receive the tax on the corrected valuation and report the difiference in his errors and releasement list or shall make such other corrections as such certificate may show right and proper. CORPORATIONS. (Sections 21-25.) Sec. 21. Quasi public corporations and all corporations, with exceptions stated, to be assessed, how. — Every quasi public corporation doing business and being operated in this State, such as gas works, waterworks, electric light, and dummy railroad companies and all other corporations public in their character and which possess rights, franchises, and privileges, shall pay an ad valorem tax upon the actual cash value of its corporate property, including its franchises, easements, incor- poreal rights, and privileges, and all other corporate property, which said value shall not be assessed at less than the aggre- gate actual cash value of both its shares of stock and bonded 140 Tennessee Tax Digest. debt, and which said value shall be computed by looking to and considering the market value; and if no market value, the actual value of such stock and bonds to the corporation ; and provided, also, that the assessed value of the corporate realty and tangible personalty otherwise assessed shall be deducted in making the assessment from the value of the corporate prop- erty or capital- stock. Real estate and tangible personalty of any corporation defined in this section shall be assessed in the same mode and manner and where situate as other real estate and tangible personalty. In computing the value of and as- sessing corporate property or capital stock under this section, the assessed value of real estate and tangible personalty shall be deducted from the aggregate actual cash value of the cor- porate property or capital stock, and the remainder shall con- stitute the value upon which the assessment shall be based. The value of the capital stock or corporate property as used in this section shall be construed as including all tangible and franchise value. All corporations, foreign and domestic, other than those hereinbefore designated in this section and in the proviso in this clause, shall be assessed in the same mode and manner as quasi public corporation [ccrporationsj set out in this section ; provided, however, this section shall not be con- strued as including railroads [railroad], streets [street], and interurban electric railways [railway], telegraph, telephones [telephone], building and loan, insurance, manufacturing, [and] banking companies or corporations as are set out in sec- tions 22 and 24 of this act, the assessment of such companies or corporations being otherwise provided for in this and in said sections and other laws. Valid method of taxing quasi public and manufacturing corpora- tions. — The method of taxation of quasi public corporations provided in this section, and of manufacturing corporations provided in sec- tions 22a-22c, post, pages 143, 144, though differing from that provided for other classes of corporations, is not vicious class legislation, and does not create an unlawful exemption from taxation, and is embraced as one subject under the general title of the act. Carroll v. Alsup, 23 Pickle, 257, 267-269. General Assessment Law. 141 Sec. 21a. Assessment schedule to be returned under oath by president or chief officer, and to show what. — For the purpose of assessing quasi public and other corporate property defined in this section [sections 21-21b], the president or chief officer in charge of and operating the business shall fill out and fur- nish upon his request therefor to the assessor under oath and in writing and [an] assessment schedule (to be returned by the assessor to the county court clerk for preservation), which schedule shall contain the following questions, viz. : (1) Stock. — The amount of stock authorized, the number of shares into which such stock is devided [divided], and the amount of stock paid up and the number of shares issued. (2) Value of stock.^The market value ; and if no market value, the actual value of such shares of stock and what the same can be [could have been] sold for on the market on the tenth day of January last past and generally during the pre- ceding two years ; and if actual sales have been made, at what price? (3) Bonded debt. — The amount of the out-stretching [out- standing] bonded debt, if any, the rate of interest borne by the same, and whether the interest is paid or in default. (4) Value of bonded debt. — The market value, if any; and if no market value, the actual value of said bonded debt on the tenth day of January la3.t and generally during the precedmg two years ; and if actual sales have been made, at what prices? (5) Dividends and surplus. — What dividends have been paid on stock in the last two years, and what surplus, if any, on hand? (6) Assessed value of realty and tangible personalty .-^An itemized statement of all the tangible personal property in each county, district, or ward where the same is situate, and the assessed value of each item, and an itemized statement of all real property, where the same is situate, and. the.assfSSEdi/al^e 142 Tennessee Tax Digest. of each item, and a certified copy as set out in section 23 of this act. (7) Bonds, stocks, securities, notes, etc., owned. — An item- ized statement of all stocks and bonds, securities, notes, ac- counts, and choses in action owned or held, whether the same be unincumbered or transferred or deposited or used as collat- eral wherever the same may be situate, and also all moneys on hand or on deposit wherever the same may be situated. (8) Other facts demanded. — Such other facts pertaining to the value of the property as may be demanded or deemed nec- essary or material by the assessor. Sec. 21b. Assessor may examine witnesses, books, or pa- pers, or obtain other evidence; gross and net receipts. — The assessor shall in the premises have full power and authority to examine witnesses, to inspect or require the production of books or papers, to obtain and consider any evidence other than that contained in said statement that he may deem mate- rial or necessary. The assessor shall visit and inspect the property whenever practicable, inform himself as to the value of the same, obtain all necessary or material evidence of the property, and of the shares of stock and of the bonded debt, either from the statement required in this act or from such other sources as he may deem proper or necessary; the gross receipts of the business for each of the last two years, and the net receipts for the same period, exclusive of amount paid for interest on bonded debt or dividends on stock. As to exemption of manufacturers, see note under subsec. 5 of sec. 2, ante, p. 115. Sec. 22. Manufacturers to pay on property, but manufac- tured articles are exempt, when. — All persons, copartners, and joint stock companies engaged in the manufacture of any goods, wares, merchandise, or other articles of value shall pay an ad valorem tax upon the actual cash [value] of the property — real, personal, or mixed — which is used and held for the pur- General Assessment Law. 143 pose of manufacturing, preparing, completing, and finishing goods, wares, and merchandise, and the article in the manu- facture of which the parties aforesaid shall be engaged ; pro- vided, the value of articles manufactured from the produce of the State in the hands of the manufacturer shall be deducted in assessing the property. As to exemption of manufacturers, see note under subsec. 5 of sec. 2, ante, p. 115. Sec. 22a. Manufacturing corporations to pay ad valorem tax on capital stock or corporate property, including franchises, etc.; value ascertained, how; manufactured articles exempt, when. — Each manufacturing corporation, either foreign or do- mestic, shall pay an ad valorem upon the actual cash value of its capital stock or corporate property, including its franchises, easements, incorporeal rights, and privileges, and all other cor- porate property, which said value shall not be less than the actual cash value of both its shares of stock and its bonded debt, and which said value shall be computed by looking to and considering the market value ; and if no market value, the actual value of such stocks and bonds ; provided, that the as- sessed value of the corporate realty and tangible personal prop- erty otherwise assessed, and in the case of manufacturers, the value of the article [articles] manufactured from the produce of the State in the hands of the manufacturers shall, in making the assessment, be deducted from the value of the capital stock or corporate property. As to exemption of manufacturers, see note under subsec. 5 of sec. 2, ante, p. 115. Omission of exemption of stock and bonds. — The exemption of the shares of stock and bonds of manufacturing corporations from tax- ation contained in Acts 1903, ch. 258, sec. 23, is omitted from this section; but see sec. 8, subsec. 6, ante, p. 122, exempting the shares of stock of manufacturing corporations whose corporate property or capital stock is assessed to the corporation. This operates as an ex- emption of the stockholders from taxation on their shares of stock in manufacturing corporations. See also sees. 22b and 22c, next be- low.— Ed. 144 Tennessee Tax Digest. Sec. 22b. Realty and tangible personalty of such corpora- tions to be assessed ; its value and that of exempt manufactures to be deducted to ascertain assessment value of corporate prop- erty or capital stock. — Real estate and tangible personal prop- erty of any corporation defined in this section [sections 22-22d] shall be assessed in the same mode and manner and where sit- uate as other real estate and tangible personalty. In comput- ing the value of and assessing corporate property or capital stock under this section [sections 22-22d], the assessed value of real estate and tangible personalty, and in the case of man- ufacturers, the actual cash value of articles manufactured from the produce of the State in the hands of the manufacturer shall be deducted from the aggregate actual cash value of the corporate property or capital stock, and the remainder shall constitute the value upon which the assessment shall be based. Sec. 22c. Capital stock or corporate property includes what. — The value of the capital stock or corporate property as used in this section [sections 22-22d] shall be construed as includ- ing all tangible and intangible or franchise values. 1. Valid method of taxing quasi public and manufacturing corpora- tions. — The methods of taxation of manufacturing corporations pro- vided in sections 22-22d, and of quasi public corporations provided in section 21, ante, p. 139, though different from that provided for other classes of corporations, is not vicious class legislation, and does not create an unlawful exemption from taxation, and is embraced as one subject under the general title of the act. Carroll v. Alsup, 23 Pickle, 257, 267-269. 2. Intangible personalty to be assessed, where. — Intangible person- alty of a domestic corporation may be assessed or back assessed at the domicile of the corporation, where statute has not fixed the situs for its taxation. Grundy Co. v. Coal Co., 10 Pickle, 295, 309-322. Sec. 22d. Schedule under oath to be filled out by corporation official and returned by assessor, as record, and to show what. — For the purpose of assessing property defined in this section [sections 22-22d], the assessor shall require the owner, opera- tor, business partner, president, or other official in charge of General Assessment Law. 145 or operating the business to fill out and furnish to the assessor under oath and in writing an assessment schedule (to be re- turned by the assessor to the county court clerk for preserva- tion), which schedule shall contain the following questions, viz. : (1) By what is business operated. — Is the business owned and operated by a person, a copartnership, a jonit stock com- pany, or a corporation? (2) Capital stock and shares. — Amount of capital stock au- thorized, number of shares into which the capital stock is di- vided, amount of stock paid up, and number of shares issued. (3) Value of stock. — The market value; and if no market value, the actual value of such shares of stock, and what the same can be [could have been] sold for on the market on the tenth day of January last past and generally during the pre- ceding two years; and if a sale or sales have been made, at what prices? (4) Bonded debt. — The amount of the outstanding bonded debt, if any; the rates of interest borne by the same, and whether the interest is paid up or in default. (5) Value of bonded debt. — The market value ; and if no market value, the actual value of such , bonded debt on the tenth day of January last past, and generally during the pre- ceding two years ; and if a sale or sales have been made, at what prices? (6) Dividends and surplus. — What dividends have been paid on stock in the last two years, and what surplus, if any, on hand? (7) Capital invested. — The aggregate amount of capital in- vested in the business, and what amount of money has been in- vested in real estate, building, machinery, engines, waterways, tramways, and privileges, and all other equipments or property 146 Tennessee Tax Digest. belonging to or connected with the business, and what is their present value? (8) Value of manufactures. — What is, approximately, the gross amount of articles actually manufactured or prepared in the business? What is the approximate amount and value of goods manufactured and material for manufacturer [manu- facture] on hand and the current prices of same? (9) Assessed realty. — An itemized statement of all real property otherwise assessed, where the same is situate, and the assessed value of same. (9a) Stocks, bonds, securities, etc., owned. — A statement of all stocks, bonds, securities, notes, choses in action owned or held, whether the same be unincumbered or transferred or de- posited or used as collateral, wherever the same is situate, and also all moneys on hand or on deposit, wherever the same may be situate. (10) Other facts demandable. — Such other facts pertaining to the value of the property as may be demanded or deemed necessary or material to the assessor. (10a) Assessor may examine witnesses, books, and papers, and obtain other evidence. — The assessor shall in the premises have full power and authority to examine witnesses, to inspect or require the production of books or papers, and to obtain and consider any evidence other than that obtained in said state- ment that he may deem material or necessary. ^ (10b) Manufactured articles presumed to be liable; nonlia- bility must be affirmatively shown. — All manufactured articles on hand shall be presumed liable to assessment, and be as- sessed by the assessor unless the same is affirmatively shown by the owner to be manufactured from the produce of the Stg,te and the true values thereof furnished the assessor. General Assessment Law. 147 (10c) Powers of assessor to ascertain values. — The assessor shall visit and inspect the property, inform himself as to the value of the same, and obtain all necessary or material evi- dence of the value of the property and of the shares of stock and bonded debt, either from the statement required in this section [section 22d] or from such other sources as he may deem proper or necessary, and in arriving at the value of the property to be assessed under the next section of this act, the assessor may visit the property and receive evidence, both oral and by deposition, upon which to base his action. 11. Gross and net receipts. — The gross receipts of the busi- ness for each of the last two years, and the net receipts for the same period, exclusive of amount paid or required for interest on bonded debt or dividends on stock. Sec. 23. Such corporations shall be assessed, when ; and the assessable value shall be ascertained, how. — When any cor- poration, foreign or domestic, defined in sections 21 and 22 of this act [sections 21-21b and 22-22d herein] owns property in this and another State, or in more than one county in this State, or in more than one civil district in any county, the cap- ital stock or incorporated property of the corporation shall, except as hereinafter provided in this section as to foreign cor- porations, be assessed in the county or place or civil district fixed in its charter for the meeting of its stockholders ; and in case such place of meeting is not fixed in its charter, then in the county or place or civil district where the principal office or place of business of the corporation is located, which said assessment shall be made in the following manner, viz. : The assessor shall compute the value of the capital stock or corporate property at not less than its aggregate actual cash value and deduct therefrom the assessed value of all real estate and tangible personal property in State, and the actual cash value of all property situated in and which as [has] acquired a permanent situs in other States as hereinbefore set out wher- ever the same may be situate, and the remainder shall consti- 148 Tennessee Tax Digest. tute the assessable value of the corporate property or capital stock at the place of assessment. Tangible personal property and realty of such corporation shall be assessed at the place or in the district where the same is situate at the time of the assessment and by the proper authority at that place desig- nated by law. The assessed value of such real and tangible personalty shall be verified by a properly certified copy from the assessment rolls or lists, which said certified copy shall ac- company the statement hereinbefore required and be likewise returned by the assessor to the county court clerk for preser- vation. As to certified copies of assessments, see sec. 21a (6), ante, p. 141. Sec. 23a. Foreign corporations with branches here shall be assessed, how. — Foreign corporations mentioned in sections 21 and 22 having branch factories or business in this State shall only be assessed on the' actual cash value of the corporate property in this State; provided, however, the franchise and intangible property of the corporation in this State shall be included in the valuation of the corporate property in the State. Sec. 24. Shares of stock in banks and certain other corpora- tions shall be assessed to stockholders, how. — The shares of stock of stockholders of any bank or banking association, sav- ings bank, or loan company, or insurance company, or invest- ment company, or cemetery company, or [any] company or in- corporation (other than such as are defined and assessable under sections 21 and 22 of this act [sections 21-21b and 22-22d here- in]) doing business in this State, whether domestic or foreign, shall be assessed and taxed for State, county, and municipal purposes as the personal property of the stockholders, whether they reside within or without the State of Tennessee ; provided, however, the assessment of such shares of stock as the prop- erty of the stockholders shall be in lieu of any assessment or taxation of the capital stock or corporate property of such cor- poration, company, or association. Shares of stock assessable under this section [sections 24-241] shall be assessed at not General Assessment Law. 149 less than the actual cash value of the same, less the assessed value of realty and tangible property, which said actual cash value of shares of stock shall be computed by looking to and considering the market value ; and if no market value, the actual value of the shares of stock, or from any other evidence of the value of the same. 1. This method of taxation is constitutional. — The taxation of the shareholders upon their shares of stock in banks and other like cor- porations, in lieu of any assessment or taxation of the capital stock, is a valid and constitutional method for such taxation, and forbids the assessment of their capital stock. Bank v. Memphis, 17 Pickle, 154. 158-160; Bank v. Memphis, 23 Pickle, 69: Carroll v. Alsup, 23 Pickle, 268, 269. 2. Assessment on capital void. — The assessment of taxes upon the capital stock of a bank is void. The assessment, under this statute, must be made against the shareholders. State, for use, v. Butler, 2 Pickle, 631, 632; Bank v. Memphis, 17 Pickle, 160. 3. Stock taxed where corporation is; bonds where holder is. — For purposes of taxation, the situs of its shares of stock may be fixed by statute at place where the corporation is located, even as against non- resident stockholders, but not so as to its preexisting or previously issued bonds. The validity and constitutionality of such legislation is no longer open to controversy. Railroad v. Morrow, 3 Pickle, 406, 427-429. 4. Stock in national banks assessable where bank is. — Shares of stock in national banks are subject to State, county, and municipal taxation at the place where the bank is located, whether the stock- holder resides there or not, at the same rate as other moneyed capital in the hands of individual citizens, although certain forms of moneyed capital may be entirely exempted. McLaughlin v. Chadwell, 7 Heis., 389, 404-409; Bedford v. Nashville, 7 Heis., 409; Franklin Co. v. Itail- road, 12 Lea, 538, 555: Railroad v. Morrow, 3 Pickle, 429; Van Allen v. Assessors, 3 Wall.. 70 U. S., 573, 18 L. ed., 229; People v. Commission- ers, 4 Wall., 71 U. S., 244, 18 L. ed., 344; Tappan v. Bank, 19 Wall., 86 U. S., 490, 22 L. ed., 189; State Railroad Tax Cases, 2 Otto, 92 U. S., 575, 607, 23 L. ed., 663, 671; Railroad v. Wright, 151 U. S., 480, 38 L. ed., 243; and other cases traceable from these. Sec. 24a. Realty and tangible personalty to be assessed to banks and certain other corporations. — Real estate and tangi- ble personalty of any corporation, company, or association de- 150 Tennessee Tax Digest. fined in this section [sections 24-241] shall be assessed [to the same] in the same mode and manner and where situate as other real estate and tangible personalty. Sec. 24b. Assessable value of stock ascertained by deducting assessed value of realty and tangible personalty. — But in com- puting the assessable value of such shares of stock, the as- sessed value of the realty and tangible property shall be de- ducted from the value of the shares of stock and the remain- ing value constitute the value upon which the assessment shall be made. Unconstitutional exemption of State bonds in hands of banks, made in previous statute, omitted here. — The exemption of registered Ten- nessee State bonds owned by banks for a period of not less than six months prior to the 10th of January, contained in Acts 1903, ch. 258, sec. 25, is omitted from this act. This exemption was unconstitu- tional, and the same was purposely omitted for. this reason. See note on page 133 of Code Supplement (1904). Expressly held to be un- constitutional. Bank v. Memphis, 8 Gates, 641, 646, 653, 656. Sec. 24c. Assessment of stock to be made where these cor- porations are located. — Assessments of shares of stock under this section [sections 24-241] shall be made at the place, ward, or district of the town or county in which the corporation, as- sociation, or company is located. See sees. 24g and 24h. Sec. 24d. President to make sworn assessment schedule showing what. — The president or business manager of any corporation, association, or company defined in this section of this act [sections 24-241 herein] is hereby required to fill out and furnish upon oath to the assessor an assessment schedule in writing (to be filed with the county court clerk for preserva- tion), which schedule shall contain the following questions, viz. : (1) Capital. — The amount of capital invested in the busi- ness. General Assessment Law. 151 (2) Shares and shareholders. — The shares of stock outstand- ing, with the name and residence of the shareholder. (3) Value of shares. — The market value ; and if no market value, the actual value of the shares of stock, and what the shares of stock can be sold for on the market. (4) Dividends, surplus, and undivided profits. — The amount of dividends for the last two years, and amount of surplus and undivided profits, if any. (5) Assessed value of realty and tangible personalty. — A certified copy of the assessed value of the real estate and tangi- ble personalty and where situate. (6) Other facts demanded. — Such other facts pertaining to the value of the shares of stock as may be demanded or deemed material by the assessor. Sec. 24e. Assessor may summon witnesses, inspect books and papers, and obtain other evidence. — The assessor shall have full power to summon witnesses, to inspect or require the production of books and papers, and obtain and consider any evidence other than said statement which he may deem proper or necessary. Sec. 24f. Shares of one hundred dollars each assessable as personalty. — For the purpose of this act and for taxation, when the capital is not divided into shares of stock, each one hundred dollars of the capital invested shall be held as one individual share, and such shares are defined and declared to be the per- sonal property assessable at the actual cash value of same. Sec. 24g. Shares of partners to be reported, and where as- sessable. — If the president or business manager has a partner or partners, he shall, upon his oath, furnish to the assessor in writing the number of shares, ascertained as above provided, held or owned by such partner or partners in the business. 152 Tennessee Tax Digest. - which shares so held shall be assessed where the business is located as hereinbefore indicated. See sees. 24c and 24h. .. Sec. 24h. President or manager to pay taxes; where as- sessed. — The president or manager shall pay the tax so levied and make the amount so paid a charge against such partner or partners ; he shall be held to be the sole owner of all the shares in the business, the same to be assessed at the place heretofore designated. See sees. 24c and 24g. Sec. 24i. List of stockholders, where kept. — There shall be kept at all times in the office where the business of such bank or banking association or other corporation included in the provisions of this section [sections 24-241] and organized un- der the authority of this State or of the United States shall be transacted a full and correct list of the names and residences of the stockholders therein and the number of shares held by each, and such list shall be subject to the inspection of the officers authorized to assess taxes during the business hours of each day on which business may be legally transacted. Sec. 24j. Attachment by collector to collect tax against non- resideat stockholders; tax is a lien on such stock. — When the owner of stock in any bank or banking association or other corporation included in the provisions of this section [sections 24-241] organized under the laws of this State or the United States shall not reside in the same county where the bank or corporation or association is located, or is a nonresident of this State, the revenue collector for the State or county or municipality shall, respectively, have the power to collect tax assessed by this act by instituting attachment proceedings, and said tax shall be and remain a prior lien on the stock until the payment of the same. General Assessment Law. 153 Sec. 24k, Tax is a lien on stock, and to be paid by corpora- tion regardless of dividends; corporation to be subrogated to lien. — For the purpose of collecting such taxes, and in addi- tion to any other laws of this State relative to the imposition and collection of taxes, it shall be the duty of such corpora- tion to pay the taxes due upon such stock, regardless of any dividend or earnings belonging to such stockholder, a prior lien being hereby declared on all such stock on and after the tenth day of January of each year, and the said corporation being hereby subrogated to such prior lien for the purpose of enforcing repayment of any taxes that may be so paid for the account of any such stockholder. Sec. 241. Attachment by State, county, and city to collect tax against nonresident stockholder. — If the taxes on such shares shall not be paid by such corporation, then the State, county, or municipality may, after such tax may have become delinquent, proceed to collect the same by attachment on said shares of stock in any court of competent jurisdiction through counsel to be employed for that purpose. Sec. 2S. Charter exemptions to be avoided as far as possible, except as to municipal taxes. — This act shall not be so con- strued, and shall not so operate, as to exonerate and release from taxation any company or corporation whose charter ex- empts stock and shares thereof from taxation ; but it is hereby enacted that in all cases where such stock is exempted, such company or corporation shall be assessed in such way as may be lawful ; and in all cases in which, by the terms or legal ef- fect of the charter, the shares of stock in any corporation are wholly or partially exempt from taxation, or in which a rate of taxation on the shares of the stock is fixed and prescribed, and declared to be in lieu of all other taxes for State, county, and municipal purposes, [there] shall be assessed and levied [a tax], at a rate uniform with the rate levied upon other tax- able property, upon the capital stock of said corporation, the value of which capital stock shall be fixed and returned to the 154 Tennessee Tax Digest. assessor as being equal to the aggregate and not less than the actual cash value of all shares of stock in said corporation, including the net surplus; provided, however, that w^here the State has provided in the charter of any such corporation or company that it shall pay a stated per cent, on each share of stock subscribed annually to the State, which shall be in lieu of all other taxes, it shall be entitled annually to a credit there- for upon its assessment of its capital stock as hereinbefore pro- vided ; and this section shall not apply so as to prescribe that the capital stock of any such company or corporation shall be assessed and taxes collected upon such assessment for munici- pal purposes when the supreme court of the State of Tennes- see has in a suit for the collection of such taxes adjudged that the capital stock of a corporation was exempt from the pay- ment of them by virtue of its charter. 1. Charter exemption of shares of capital stock is not effective as against ad valorem taxation of capital stock, nor from privilege tax- ation. — The capital stock of a corporation is not exempt from tax- ation under a charter provision that it " shall pay to the State an annual tax of one-half of one per cent, on each share of capital stock subscribed, which shall be in lieu of all other taxes." State v. Insur- ance Co., 13 Pickle, 85, 87-100; Bank v. Memphis, 17 Pickle, 154, 160- 167. Such provision in the charter does not operate as an exemption of the corporation's capital stock from ad valorem taxation, and a fortiori not from privilege taxation. Bank v. Memphis, 17 Pickle, 154, 160-167. 2. Charter exemption effective as to ad valorem taxes, but not as to privilege taxes. — A charter provision that the corporation's property " shall not be liable for taxation " exempts it from ad valorem taxes, but not from privilege taxes. Harkreader v. Turnpike Co., 17 Pickle, 680. 3. Back assessment for preceding years, for which no original as- sessment was authorized, is void. — Where the shares of stock of a bank are exempt from taxation by charter provision and its capital stock is not subject to original assessment under the law for certain years, a back assessment of such capital stock for such years is void. Bank v. Memphis, 23 Pickle, 66. 4. Exemptions from taxation cannot be created now, except. — These charter exemptions from taxation were granted before the constitu- General Assessment Law. 155 tion of 1870; for since the adoption of that constitution, no exemption can be created by the legislature except those permitted by the same. See const., art. 2, sec. 28, and note 16. MERCHANTS. (Sections 26-26e.) Sec. 26. Merchant to pay ad valorem tax equal to that on other property. — Merchants shall pay all [an] ad valorem tax upon the capital invested in their business equal to that levied on taxable property. Sec. 26a. Term " merchant " defined. — The term " mer- chant/' as used in this act, includes all persons, copartnerships, or corporations engaged in trading or dealing in any kind of goods, wares, merchandise, either on land or in steamboats, wharf boats, or other craft stationed or plying in the waters of this State, and confectioners, whether such goods, wares, or merchandise be kept on hand for sale or the same be purchased and delivered for profit as ordered. 1. " Merchant " defined. — A merchant is one whose pursuit and voca- tion is the business of buying and selHng merchandise. State v. Smith, 5 Hum., 394, 396; Chib v. Dwyer, 11 Lea, 462. The trading and deaHng in goods, wares, and merchandise implies not only selling, but buying to sell, as a vocation or business. This constitutes a mer- chant. Ayrnett v. Edmundson, 9 Bax., 611; Saunders v. Russell, 10 Lea, 297. To constitute a dealer, one must not only buy, but buy to sell, as a vocation or business. Saunders v. Russell, 10 Lea, 297. 2. Manufacturer selling his own manufactured articles taxed as a merchant, when. — A manufacturer of whisky selling same may be taxed as a dealer or merchant. Webb v. State, 11 Lea, 462, 464; Kurth v. State, 2 Pickle, 134, 136-138; Steel & Wire Co. v. Speed, 2 Gates, 540. A manufacturer selling his own manufactured articles to consumers is a dealer, though he does not buy to sell again, and is a merchant, and taxable as such. Kurth v. State, 2 Pickle, 137, and Steel & Wire Co. v. Speed, 2 Cates, 540, both disapproving as a dictum the statement that " a dealer is one who buys to sell again " made in the case of Taylor v. Vincent, 12 Lea, 282, 285, 286. A manufacturing corporation of a sister State, selling and distributing its manufactured products from warehouses here through its agent, is a merchant, and taxable as such under a statute defining the term " merchant " as the 156 Tennessee Tax Digest. above statute (section 26a) and taxing merchants as in section 26 above. Steel & Wire Co. v. Speed, 2 Gates, 524, 527-535, 538-542. 3. Trustee selling stock assigned is not a merchant. — Where a mer- chant makes an assignment of his stock of goods, and the trustee sells them from the store, without replenishing the stock, such trustee is not a merchant, or liable to be taxed as such. Ayrnett v. Edmundson, 9 Bax., 610, 611; Saunders v. Russell, 10 Lea, 297. 4. Proprietor of school furnishing his students is not a merchant. — The proprietor of a school who keeps on hand a supply of clothing and stationery which he sells to the pupils and teachers boarding with him as members of his family, and to no others, is not a merchant. State V. Smith, 5 Hum., 394, 396; Club v. Dwyer, 11 Lea, 452, 462. Sec. 26b (1).* Merchants to make sworn statement and pay on average stock, or capital stock, when; how average stock is ascertained; "capital" defined. — Persons, firms, companies, or corporations engaged in the business of merchandising other than such as are embraced in subsequent subsections of this section shall be taxed as herein set out. Such persons, firms, companies, or corporations shall, at the expiration of the period of the bond provided for in this act, file with the clerk of the county court of the county a statement under oath, showing the amount of capital invested in business to be assessed for taxation ; but under no circumstances shall the amount to be assessed be less than the value of the average amount of stock on hand during the preceding year, to be ascertained by add- ing together the value of the highest amount of stock on hand at any time during said year with the value of the lowest aniount of stock on hand at any other time during said year, and dividing the same by two, and adding thereto the actual cash value of all the movable pictures, safes, dishes, and ofhce furniture where same belong to and are the property of said merchants; said statement to be sworn to by such merchant, person, or the head of such firm, company, or corporation, in which he shall state that he has not reduced his stock for the purpose of escaping taxation at any time, and has fully, truly, and correctly, without evasion or reservation, made return as required by law ; and said average amount of stock as sworn General Assessment Law. 157 to by said merchant, person, firm, company, or corporation shall be deemed the taxable value of the capital of such mer- chant, person, firm, company, or corporation upon which he shall pay to the county court clerk the same tax as levied upon real estate and other property for State, county, and 'munici- pal purposes. The word " capital " as used in this subsection shall be construed so as to mean the average amount of stock on hand during the year in which it is ofifered for sale, the amount to be ascertained as provided in this section [section 26c] ; but if the average stock on hand is less than the capital stock employed by said merchant, firm, or corporation, he shall pay a tax on the capital stock. Sec. 26c (2). Method of arriving at taxable value of auction or commission stocks ; sworn statement to be filed. — Stocks of merchandise, wares, goods, and chattels sold at auction or on commission shall be assessed for taxation, and the following is declared to be the method by which the amount to be re- turned or assessed shall be determined, viz. : Where any person, company, corporation, or firm shall have sold goods, wares, merchandise, which shall include farming im- plements and machinery or chattels at auction or all. [on] com- mission or as agents, whether in the regular business of selling at auction or on commission, or shall have made such sales in connection with any other business, the aggregate amount of said auction or commission sales for the period engaged in business not exceeding twelve months shall be ascertained, and one-third of said amount of sales shall be returned for taxa- tion. This section shall include any person, firm, or corpora- tion having goods consigned to them for sale. The person, firm, company, or corporation engaged in said business shall, at the expiration of the period covered by the bond provided for in this act, file with the clerk of the county court a statement giving the aggregate amount of sales made during such period, verified by an oath that said statement is made without evasion or reservation, correctly, fully, and truly 158 Tennessee Tax Digest. shows the aggregate amount of sales of every kind and char- acter made during said period. Sec. 26d (-3). Capital in trade without stock of goods is tax- able; sworn statement. — All capital employed during the pre- ceding twelve months in any manner of trading in which there is no stock of goods, wares, and merchandise kept on hand for sale, and the aggregate capital reported shall be deemed the taxable capital of such merchant or factor, upon which he shall pay the same tax as levied upon real estate and other property for State, county, and municipal purposes, and the report herein required shall be sworn to by such merchant or the head of such copartnership, person, mercantile firm, com- pany, or corporation. The person, firm, company, or corporation engaged in such business shall, at the expiration of the period covered by the bond provided for in this act, file with the clerk of the county court a statement giving the aggregate amount of capital em- ployed during such period, verified by an oath that said state- ment, without evasion or reservation, correctly, fully, and truly shows the aggregate amount of capital of every kind and char- acter employed during such period. Sec. 26e (4). Citation by clerk for revisal and correction of sworn statement ; power to investigate ; insurance to be ascer- tained. — If, in any case, the statements required herein to be made to the clerk of the county court should for any reason be considered as unjust, incorrect, or inadequate, either by the clerk of the county court or his deputy, or by the district at- torney, or by any revenue agent of the State or county, or by any reputable taxpayer of the State filing a written objection with such clerk, it shall be the duty of such clerk or his deputy, on his own motion, or by direction of such district attorney or revenue agent, or at the request of the taxpayer filing a writ- ten objection, to issue a citation to the person, firm, company, or corporation returning the statement to appear before such clerk on a day not less than five days from the date of the is- General Assessment Law. 159 suance of the citation and show cause why such statement shall not be revised and corrected. The clerk of the county court and his deputy shall, in the premises, have full power and au- thority to issue subpoenas, to send for and examine witnesses, to administer oaths, to send for and examine books ; and it shall be the duty of the clerk upon such investigation to cor- rect, revise, and audit such statement and fix the amount of taxes for which the party or parties may be liable. It shall be the duty of such clerk also in such cases to inquire into and ascertain the amount of insurance upon the property during the time covered by said bond. PRIVILEGES. (Sections 27-29.) vSec. 27. Exercise of privilege without a license is prohibited ; violation is a misdemeanor; fine. — No merchant, firm, com- pany, copartnership, corporation, agent, or trader shall com- mence or continue a business declared to be a privilege under this act or revenue act in any county of this State without ob- taining license from the clerk of such county in accordance with the previous provisions of this act, and every person, in- dividual, or member of any copartnership or corporation so offending shall be subject to prosecution for each day's viola- tion of this law, and on conviction shall be fined not less than $10 for each offense. For privileges in the revenue act, see Acts 1907, ch. 541; sees. 4-10, ante, pp. 18-81. Exercise of privilege without paying the license tax invalidates the contract. — A contract made in the exercise of a privilege without pay- ment of the required license tax is void, and the courts will not aid in its enforcement. The seller in such case cannot maintain an action to recover back the property, under a provision of the contract reserv- ing that right upon the seller's default in making payment of the pur- chase price. Manufacturing Co. v. Draper, 19 Pickle, 262. See note 24, ante, p. 17. Sec. 27a. License must show what. — Said license is hereby required to show all the State and county revenue paid, the i6o Tennessee Tax Digest. name or names of the party or firm or corporation or com- pany. Sec. 27b. License must be registered by circuit court clerk; registration shall show what. — Said license is further required to be reg'stered in the office of the clerk of the circuit court in a book kept by him for that purpose, showing in full the date of issuance, name or names of the party or parties to whom issued, the character of the business, and the amount of State and county tax paid, and to be countersigned by the clerk of the circuit court or his deputy, which countersigning shall be after the license is issued by the county court clerk. Sec. 27c. Fee for registering and countersigning license, and making reports by circuit court clerk. — For registering and countersigning said license and for making a quarterly report of the same to the State comptroller and chairman of the county court, to be accompanied with his revenue reports, he [the clerk of the circuit court] shall receive the sum of fifty cents for each license, to be paid by the party or parties to whom said license is issued. Sec. 27d. Validity of license depends upon compliance with law; violation is a misdemeanor. — Said license shall not be considered valid, nor shall it be delivered by the county court clerk until the provisions of this act have been complied with, and each violation of the provisions of this act on the part of the county or circuit court clerk is hereby declared a misde- nieanor. Sec. 27 1. Circuit court clerk or his deputy must countersign ; violation is a misdemeanor. — It is also declared a misdemeanor for any person except the circuit court clerk or his legally qualified deputy to sign the name of the circuit court clerk to said license, and upon conviction the offender shall be fined not less than $10 nor more than $25 for each offense. General Assessment Law. i6i Sec. 27f. Applicants for license must give bond; notice of expiration. — Every merchant, firm, company, person, corpo- ration, agent, or trader applying for license shall, before re- ceiving the same, execute a bond to the State, with good se- curity, to be approved by the clerk of the county court, in the sum of $500, conditioned that said merchant, firm, company, person, corporation, agent, or trader will render to the clerk issuing the license at the end of twelve months from date of the bond (or if the merchant ceases tO' do business before the expiration of the twelve months, then as soon as he ceases to do business) a true statement under oath as prescribed by this act, and will pay all taxes, fines, and penalties provided by law; provided, that five days before the expiration of said bond the clerk shall give the party, parties, firm, corporation, agents, or trader notice of the date of expiration. Sec. 27g. Clerk's fee for bond and license is one dollar. — For taking the bond and issuing the license and recording the same and all other work connected therewith the clerk shall be entitled to $1, to be paid at the time of issuance. Sec. 27h (2). License to be renewed annually. — Any mer- chant, person, firm, company, corporation, agent, or trader con- tinuing in business shall renew his license annually. Sec. 27i (2a). Term and locality of license. — No license shall authorize merchandising out of the county where issued, nor for a period longer than for one year, nor for a shorter period than three months. 1003. 869. License may be issued quarterly. — It shall be law- ful for clerks of the various county courts in the State to issue license by the quarter for the exercise of any privilege under the laws of this State. (1883, ch. 29, in Code.) 1. Settlement by quarters on ceasing business. — Where a merchant takes out a license for a year, and ceases to do business within the year, the license and tax should be cut down to the period of actual business, counting by quarters. Eastman v. Litterer, 13 Lea, 723. 6 i62 Tennessee Tax Digest. 2. License cannot be issued for less than a quarter of a year. — Liquor dealer's license cannot be issued for less than one quarter of a year, although the time within which intoxicating liquors may be legally sold may expire within the quarter, and not extend more than one month. Opinion of Attorney-General Gates. 3. List of privileges for fixed periods. — Gircuses or menageries taxed for each performance or show, and other shows and performances taxed by the day or night, or day and night, by the week, month, and year (ante, pp. 27 and 28). License to distillers shall not be issued for less time than one year (ante, p. 33). License to dealers in Oriental wares and novelties shall be taken for not less than one year (ante, p. 32). Flying jennies taxed per month (ante, p. 36). Tax on hotels at summer resorts may be paid semiannually (ante, p. 39), from which it may be concluded that other hotels must pay by the year. License shall not be issued to itinerants for less than one year (ante, p. 41). License for certain theaters not to be taken out for less than twelve months (ante, pp. 64). — Ed. Sec. 27] (2b). License is transferable, when, and upon what terms. — But should any person, firm, corporation, agent, or trader, having paid in advance for such license, sell, transfer, or dispose of such business before the expiration of such li- cense, the license shall be transferable, and the person pur- chasing shall have full authority to continue said business un- til the expiration of said license ; provided, the same bond shall be given as hereinbefore required in this section [section 27f] to account for his proportion of the ad valorem tax. See Acts 1907, ch. 602, sec. 11, ante, p. 81. Sec. 27k (3). All taxes must be paid before the sale of the business; prior lien in assignments for creditors. — No person, firm, company, copartnership, corporation, agent, or trader ex- ercising a taxable business where the stock of goods, wares, and merchandise is carried shall sell or transfer said business as an entirety until all State and municipal and county tax due thereon shall be first paid ; and in case any person, firm, com- pany, copartnership, corporation, agent, or trader exercising such business shall make an assignment, general or partial, for General Assessment Law. 163 the benefit of creditors, it shall be the duty of the assignee to first pay in full out of the first assets that come into his hands all taxes that may be due upon such business, which shall be a prior lien in preference to all other claims. Sec. 28. Clerk to turn over bonds of delinquents to county attorney, or what other attorney, when ; receipts. — The county court clerks of this State are hereby required to turn over to the county attorney, or if no county attorney, then to an at- torney to be selected by the county judge or chairman of the county court or revenue agent, all privileges and license bonds due and unpaid within thirty days after said bonds become due and payable, taking duplicate receipts for the same, specifying the amount due thereon as nearly as can be ascertained, one of which receipts shall be forwarded to the comptroller of the State and the other spread on record in the county court. Sec. 28a. Notice to principal and sureties ; judgment by mo- tion. — Whereupon the said attorney or clerk of the county court or revenue agent shall forthwith give five days' notice to the principal and surety on such bonds to appear before the chairman or judge of the county court in which such bond is due and show cause, if they have any, why judgment should not be rendered against them for the amount of revenue due on : uch bonds, which judgment shall in no case be less than the amount of the ad valorem and privilege tax fixed by law and by the county court, with six per cent., interest and a penalty of one per cent, for each day such revenue is delinquent after thirty days from the date of said notice, and an attorney's fee of $5 on each bond. Sec. 28b. Jurisdiction of county court to enforce collection of this revenue. — Jurisdiction is hereby conferred on the county courts of this State to try and determine such cases, to render judgment, issue execution, and do all things necessary to enforce the collection of this revenue and necessary to the enforcement of this act. 164 " Tennessee Tax .Digest. Sec. 28c. Notice of five days returnable to any Monday. — The notice so given may be returnable on [to] any Monday of said county court to the judge or chairman thereof; provided, that five days' notice is given, when the judge or chairman shall try the matter. Sec. 28d. Judgment by motion upon default. — Upon failure of the principal or security to appear, the attorney, revenue agent, or clerk shall move for judgment, and the chairman or judge shall render and have entered a judgment for the amount of said taxes,, interest, penalties, as aforesaid, with costs. Sec. 28e. Clerk's fees.^The said clerk shall be allowed the usual fees for such services as in the circuit courts of this State. Sec. 28f. State, county, and city to pay no costs. — The State, county, and municipality shall in no event pay any cost in these proceedings, but the same shall be taxed against delin- quents. Sec. 28g. Distress warrants notwithstanding these suits. — Such suits shall not interfere with the right of the clerk at any time to issue a distress warrant to collect such taxes, if in his judgment property can be found on which to levy same. Sec. 29. County court clerks to collect privilege and mer- chant's taxes; fines and penalties. — The clerks of the county courts of the several counties of this State shall collect all taxes on merchants, persons, companies, firms, corporations, agents, or trader, and all privileges as now provided by law, [and] shall, be subject to all the fines and penalties for failuie to pay such taxes over to the comptroller, county trustee, and municipal authorities that are provided for in this act in cases of trustees. 1. Fines and penalties.— For the fines and penalties referred to in this section to be inflicted upon county court clerks for failure to pay i General Assessment Law. 165 over the taxes, see sees. 71 and 71a, post, p. 241. See also sec. 35, post, p. 189, for other penalties. 2. Merchant's tax collected by county court clerk, and not by county trustee. — The county court clerk collects the ad valorem and privilege tax against merchants, and the county trustee is not charged with the collection thereof. Opinion of Attorney-General Gates. 3. Privilege and merchant's taxes collectible by county court clerk. — For the privilege and merchant's taxes collectible by the county court clerk, see sees. 3 and 4 of Acts 1907, ch. 541, ante, pp. 3 and 18. See also sec. 30, subsec. 5, post, p. 166, and sec. 47, post, p. 208, show- ing that the county court clerk collects these taxes, and that the county trustee has nothing whatever. to do with their collection from the tax- payers. BACK ASSESSMENTS OR REASSESSMENTS. (Section 30.) Sec. 30. Any property or properties included in this act shall be back [assessed] or reassessed for the period now provided by law, viz. : (1) Omissions. — When the same have been omitted from or escaped taxation. (2) Inadequately assessed by reason of fraud, etc. — When the same has been assessed by the assessor or computed by the board of equalizers at less than its actual cash value by reason of any fraud, deception, misrepresentation, misstate- ment, or omission of full statements of the owner of the prop- erty or his agent or attorney. (3) Inadequately assessed by fraudulent procurement or connivance of owner ; or gross inadequate assessment. — When the owner of the property connives at or fraudulently procures or induces an assessment to be made by the assessor or com- puted by the board of equalizers at less than its actual cash value ; provided, however, in all cases where there is a grossly inadequate assessment, fraud shall be presumed. 1 66 Tennessee Tax Digest. (4) For failure to list property. — When the owner or his agent fails, refuses, or neglects to list the property to the as- sessor as required by law. (4a) Back assessment or reassessment is no lien against bona fide purchaser ; burden to show bona fide purchase ; lien where there was no assessment at all. — But in no case shall the back [assessment] or reassessment of real estate consti- tute a lien on the real estate which has by bona fide sale passed into the hands of innocent purchasers, but shall be a liability aga'nst the person or persons owning same at the time of the inadequate assessment; provided, however, the burden of prov- ing a bona fide sale shall be upon the person owning such real estate at the time of such back [assessment] or reassessment ; provided, this shall not apply to property that has wholly es- caped taxation. (5) In case of assessment at less than actual cash value, cita- tion to issue to owner, by whom and at whose instance. — Whenever it is within his knowledge or he has reason to sus- pect in his county that any property has, in violation of the foregoing subsections of this section, as above prescribed, been assessed by any assessor or computed by any board of equal- izers at less than its actual cash value, it shall become the duty of any revenue agent, of any district attorney, of any attor- ney of the county, of the judge or chairman of the county court, of the county court clerk, of any circuit, chancery, and criminal court clerk, of any sheriff, and of any citizen of the county, to cause or have the county court clerk, in the case of merchants' taxes, delinquent privilege taxes, and the county trustee, in case of other taxes covered by this act, to have issued the citation hereinafter set out for the purpose of back [assessing] or reassessing such property. At the request of or upon the information of [or] motion of any citizen or tax- payer of the State, or of any of the ofiicers above named, it shall be the duty of the county court clerk, in case of mer- chants' taxes and delinquent privilege taxes, and the county General Assessment Law. 167 •trustee, in the case of other taxes covered by this act, to issue for the purpose of back [assessing] or reassessing property the citation hereafter set out [in the next subsection]. The county court clerk, in the case of merchants' taxes and delin- quent privilege taxes, and the county trustee, in the case of other taxes, covered by this act, upon the motion or informa- tion or at the request of any citizen or taxpayer of the State or of any of the officials before designated, or when the same is within the knowledge of or suspected by the county court clerk or county trustee, shall issue,' as to any property assessed or valued in violation of this act at less than the actual cash value of the same, a citation, to be served by any officer of the county or any district thereof, upon the owner of the property or his agent or representative or attorney, summoning him to appear before such clerk or county trustee at his office, giving not less than five days' notice from the date of the issuance of the citation, and show cause, if any, why said property should not be back [assessed] or reassessed at its actual cash value. (5a) Form of citation.— The form of citation shall be sub- stantially as follows, viz. : State of Tennessee, county. To , at , Tenn. Proper motion having been made before me by , State revenue agent for the State of Tennessee, under section 30, chapter 602, of the Acts of Tennessee, 1907, you are hereby cited to appear before me, , trustee, or county court clerk, county, Tenn., at my office in the courthouse in , Tenn., on the day of , 190 — , at o'clock — M., for the purpose of being assessed or reassessed for the years upon omitted or inadequate assessed property in the said county and State, and show cause, if any, why said property should not be back [assessed] or reassessed at its actual cash value. , Trustee or county court clerk, county, Tenn. Issued at office this day of , 190 — . 1 68 Tennessee Tax Digest. (5b) Back assessing or reassessing officials have power to summon, swear, and examine witnesses. — The officials herein named as having power to back [assess] or reassess property are vested with full authority to administer oaths, send for and examine witnesses, and take such steps as may be deemed necessary or material to obtain information and evidence as to the value of the property, (5c) Witnesses are amenable to law for nonattendance and failure to give evidence. — Said witnesses, when properly sum- moned, shall be amenable to existing laws for nonattendance or failure to give evidence which is in their knowledge. (5d) Back assessments or reassessments are valid as origi- nal assessments, and have effect as judgments. — Said officials herein vested with the power to back [assess] or reassess prop- erty shall have full authority, in proceedisg to back [assess] or reassess such property, to make proper, correct, and ade- quate assessment of the same at its actual cash value, which, when entered upon the tax book or filed in writing with the authorized tax collecting authority, shall become a final and valid assessment of the property and collectible as such as fully and amply as if originally entered upon the assessment roll; and said assessment, when made by said official author- ized to make same, shall have the force and effect of a judg- ment against the person liable for the taxes for the year for which said reassessment is made. See note 2 under Code sec. 816, post, p. 173. (5e) Penalty to be added; penalty and costs become part of taxes. — Should it appear that any property has been assessed at less than its actual cash value in violation or in disregard of the provisions of this act, the official back [assessing] or reassessing the same shall add to the assessment a penalty of fifteen per centum upon the amount of the added tax and the cost of the proceeding, which said penalty and cost shall be- come a part of the taxes and collectible as such, General Assessment Law. 169 (5f) Costs paid by county where motion fails. — If the pro- ceeding is determined in favor of the owner of the property, the cost shall be paid by the county. (5g) Assessments to be compared with inventories and re- ports of fiduciary officers by county court clerk; report to county trustee; back assessments or reassessments with pen- alty, when. — It shall be the duty of the clerks of the co.unty courts to examine and compare the assessment rolls of the county with the inventories or reports of administrators and executors as soon as filed with the county court clerk for the purpose of ascertaining whether any personal property of any estate is subject under this act to back [assessment] or reas- sessment. In case such examination shall show any person- alty subject to such back [assessment] or reassessment, the clerk of the county court shall report the same to the county trustee, who shall ba,ck [assess] or reassess the same under the provisions of this act, and add thereto the penalty heretofore designated. See subsec. 5e, above, for the penalty. (5h) Liability of county court clerk or county trustee for failure to perform duty; jurisdiction for recovery. — In case the county court clerk or county trustee shall fail or refuse to per- form the duty herein imposed, such clerk or trustee shall be- come liable on his official bond for the amount of taxes which might have been recovered had said duty been properly per- formed, together with the penalty of fifteen per cent, added thereto, said liability and penalty to be recovered in any court of record or before any justice of the peace at the instance of any district attorney or revenue agent of the State, or by suit or by motion on five days' notice in the chancery or circuit court or before any justice of the county. See sec. 38, post, p. 200, as to " picked up " taxes, and the limitation as to back assessments. 1. Back assessment of railroad property. — The back assessments of railroad property are now made by the railroad commissioners un- I70 Tennessee Tax Digest. der Acts 1897, ch. 5, sees. 1, 20; Acts 1897, chs. 7 and 10. Previous to these statutes, such back assessments and reassessments of such prop- erties were made by the comptroller, and not by the county trustee, as to the railroad distributable property. State v. Railroad, 12 Pickle, 385; Railroad v. Williams, 17 Pickle, 149. 2. Statutes for back assessment of property are constitutional. — Statutes authorizing assessment, for taxation, of property omitted from the regular assessment, and a reassessment of property assessed originally upon an inadequate valuation, are valid and constitutional. Wilson v. Benton, 11 Lea, 51, 56; Railroad v. Morrow, 3 Pickle, 406, 414; Grundy Co. v. Coal Co., 10 Pickle, 304. 3. Back assessment for preceding years, when original assessment was not authorized, is void. — The back assessment law does not au- thorize the back assessment, for preceding years, of property which was not subject to original assessment under the then existing laws, as the capital stock of banks whose shares were exempt from taxation by charter provisions. Bank v. Memphis, 23 Pickle, 66, 69-73. CODE PROVISIONS AS TO BACK ASSESSMENTS AND REASSESSMENTS, AND LIMITATIONS. 814. 663. Collector to assess, when. — All collectors of taxes are hereby made assessors to assess all property which by mis- take of law or fact has not been assessed, whether the omission be for the particular year for which the collector is acting, or for any previous year or three years, and it is hereby made the duty of such collectors, in all cases where property has not been assessed, but on which taxes ought to be paid by. law, to immediately assess the same, and proceed to collect the taxes. (1883, ch. 181 ; 1885, ch. 23.) - 815. 664. To collect. — Such collectors are hereby authorized to assess and collect taxes upon property for all the years for which taxes ought to have been paid upon such property, but have not been paid in consequence of the errors or omissions of former collectors or assessors ; and if the owner of the prop- erty admits the liability of the property to taxation, but dis- putes the assessment, he may have a revaluation before the judge or chairman of the county court at any time within one month, and in such case the judge or chairman aforesaid may General Assessment Law. 171 hear the proof and fix the assessment or valuation, and the same shall be final ; but no taxes on property for more than three years back shall be assessed and collected where they have not been assessed and not paid in consequence of the er- rors or omissions of former collectors or assessors. (1883, ch. 181 ; 1885, ch. 23.) As to limitation of assessments, see Acts 1907, ch. 602, sec. 38, post, p. 200. 1. " Collector " defined. — The word " collector " includes any per- son intrusted with the collection of pubHc revenue. See State v. Railroad, 14 Lea, 59, 60; Railroad v. Lauderdale Co., 16 Lea, 691; State V. Railroad, 12 Pickle, 393, 398, 402, 403; Code, sec. 67. And includes a county trustee. McHenderson v. Anderson Co., 2 Pickle, 606, 607. 2. Rule previous to last two sections. — Previous to the statute (Acts 1883, ch. 181) embraced in the last two sections, it was held that, un- der Acts 1879, ch. 79, no power was given collectors to assess and col- lect taxes for years anterior to their election and qualification. Otis v. Boyd, 8 Lea, 679; Wilson v. Benton, 11 Lea, 56; Franklin Co. v. Railroad, 12 Lea, 527, 529, 530, 544; State v. Hirsch, 16 Lea, 42; Iron Cos. V. Pace, 5 Pickle, 712, 713. In view of this decision was said Acts 1883, ch. 181, passed. State v. Railroad, 14 Lea, 59; State v. Hirsch, 16 Lea, 42; Iron Cos. v. Pace, 5 Pickle, 712, 713. 3. Collector could then assess only for years for which he was col- lector and where there had been no assessment at all. — But an assess- ment made for a given year by the collector whose duty it was to col- lect the taxes for that year, during his official term, was held good. Otis v. Boyd, 8 Lea, 679; Wilson v. Benton, 11 Lea, 55, 56. Where an assessment had been made, the collector could not reassess. He could assess only where no assessment at all had been made. Frank- lin Co. V. Railroad, 12 Lea, 521, 530, 531, 544, 545; State v. Railroad, 14 Lea, 58; Railroad v. Lauderdale Co., 16 Lea, 691; Iron Cos. v. Pace, 5 Pickle, 716; State v. Railroad, 12 Pickle, 402, 403. 4. This rule changed by statute. — But under the provisions of Acts 1907, ch. 602, sec. 30, subsecs. 2 and 5, the collector may now make a reassessment of property assessed originally upon an inadequate val- uation, and could formerly do so under previous acts and Code, sec. 823, which are superseded by said act of 1907. — Ed. 5. When and to whom assessed; liens of back assessments and re- assessments. — Property should be assessed at its value on the 10th 172 Tennessee Tax Digest. of January for any year; and if it changes hands after that time, an assessment under this statute in the name of the subsequent owner would be valid, and fix a lien upon the property. Railroad v. State, 13 Lea, 348. But see Acts 1907, ch. 602, sec. 30, subsec. 4 (subsec. 4a herein, ante, p. 166), abolishing the lien of reassessments made after a bone fide sale, but not of back assessments where there had been no assessment at all. — Ed. 6. Last clause in last section did not affect previous assessments.— The act of 1885, ch. 23, is not a statute of limitations, and is prospec- tive only, not affecting assessments made before its passage, as it only restricts the power of tax collectors to assess omitted property to three years next preceding the assessment. Shelby Co. v. Railroad, 16 Lea, 401, 406-408; Iron Cos. v. Pace, 5 Pickle, 707; Wallace v. Good- lett, 20 Pickle, 682. 7. Jurisdiction of circuit court by appeal and certiorari. — The cir- cuit court has jurisdiction by appeal from the justice's judgment, and by the writ of certiorari to bring up the proceedings before the county judge or chairman, to hear and determine the question of the right to tax the property. Franklin Co. v. Railroad, 12 Lea, 530; Shelby Co. V. Railroad, 16 Lea, 412. 8. Assessment conclusive as to valuation, when. — In a suit for as- sessed back taxes, the assessment, under the statute, is conclusive as to the valuation put upon the property, but not as to the right to assess and collect the taxes. Revaluation can be had only by appeal from the assessment to the judge or chairman of the county court, and the taxpayer must show such appeal affirmatively. Shelby Co. v. Railroad, 16 Lea, 412, 413; Tomlinson v. Board, 4 Pickle, 14; Iron Cos. V. Pace, 5 Pickle, 720; Grundy Co. v. Coal Co, 10 Pickle, 304-307. 9. Assessors, examiners, and equalizers are not constitutional courts. — Board of assessors and examiners are not constitutional courts, and every citizen has an inalienable right to have all questions touching his life, liberty, or property, heard, passed upon, and deter- mined by the regular constitutional courts. Franklin Co. v. Railroad, 12 Lea, 521, 528-530; Railroad v. Bate, 12 Lea, 573, 577; Grundy Co. v. Coal Co., 10 Pickle, 305; Staples v. Brown, 5 Gates, 644 (a city council vested with judicial powers to try contested elections is not a court in the sense of the constitution, and its judgment cannot be made con- clusive). The board of examiners here mentioned are now called " board of equalizers." — Ed. 816. 665. When owner claims the property to be exempt, mode of procedure. — In case the owner of the property denies General Assessment Law. 173 the right of the State, county, city, or town to tax his prop- erty, and claims that it is exempt by virtue of the constitution or any law or ordinance, but raises no question as to the amount or value fixed in assessing the property, then such collector shall submit the facts to the comptroller as to the State tax, to the judge or chairman of the county court as to the county tax, and to the mayor of the city or town as to the municipal corporation taxes ; and if, by these several officers, or any one of them, he is directed to proceed to the collection of the taxes, he shall, immediately and without any delay, obtain, from any justice of the peace of his county, a warrant or warrants for said taxes, and which shall be served on the owner of said property, and set for trial before some justice of the peace in said county, and the warrants may be for the State, county, and municipal corporation taxes, jointly or separately; and all justices of the peace are hereby given jurisdiction to try all such cases, no matter what the amount, and the same shall be tried without delay, with the right to appeal to either party to the circuit court, and the appeal shall go to the next succeed- ing term unless the court is in session to which the appeal is taken, and in that case the appeal shall be to the term being held, and shall be entered and tried at that term. (1879, ch. 79, sec. 2.) 1. Suit in name of collector. — The suit may be brought in the name of the collector as such, whose authority need not be shown in the warrant, and which cannot be questioned by a motion simply to dis- miss for want of same. Wilson v. Benton, 11 Lea, 54, 55. 2. Assessment creates debt, and may be sued on in chancery. — When the assessment is made, it becomes a debt against the owner of the property, which may be enforced by suit in chancery court, or in the mode designated in this statute, or in any other legal mode. State V. Railroad, 14 Lea, 62; State v. Hirsch, 16 Lea, 43, 44; State v. Bank, 16 Lea, 117; Druggist Cases, 1 Pickle, 449, 464; Grundy Co. v. Coal Co., 10 Pickle, 305. But by Acts 1907, ch. 602, sec. 30, subsec. 5 (5d here- in), ante, p. 168, the back assessments and reassessments have the force and effect of judgments against the taxpayer. 817. 666. When wrong assessment, and exemption. — In case the owner of the property disputes both the assessment as to 1.74 Tennessee Tax Digest. amount and the right to tax his property, then he shall be al- lowed ten days to have a reassessment before the judge or chair- man of the county court, and at the end of the ten days the tax collector shall proceed as under the foregoing section. (1879, ch. 79, sec. 3.) Appeal must be tried within the ten days. — Where the appeal is perfected within the ten days, and the case is continued by appellant beyond that period without obtaining a reassessment, and the county judge or chairman dismisses the appeal for want of jurisdiction to make a reassessment, he cannot be compelled by mandamus to make a reassessment, because he has no jurisdiction of the matter after the expiration of the ten days from the original assessment. Iron Cos. V. Pace, 5 Pickle, 707. 818. 667. Appeals to have precedence. — In cases arising un- der this law it shall be the duty of courts, the circuit and su- preme courts, in case of appeal, to hear and determine the questions arising in preference to all other cases. (1879, ch. 79, sec. 4.) See Code, sec. 4671, and note 10 under sec. 4675. 819. 668. Collector to make record and oath. — Every collector of taxes making assessments and collecting taxes under the provisions hereof shall keep a book upon which he shall enter all property assessed by him, giving a description of the prop- erty so assessed, the amount of taxes so collected, and upon his final settlement with the comptroller and with the county court, shall file a copy of the same, under oath, stating that said copy contains a true and a perfect list of all taxes so col- lected by him. (1879, ch. 79, sec. 5.) 1. Assessment, valid without record, when. — An assessment made in writing, specifying the property and its assessed value, with the amount of tax thereon due the State, county, and municipality, dated and officially signed, is sufficient. Wilson v. Benton, 11 Lea, 55; Ar- buckle V. McCutcheon, 3 Cates, 518. The assessment of back taxes, made by the proper officer upon legal notice and hearing, and writ- ten out in proper form and signed, is valid, without being entered upon the record book as prescribed by this section. Grundy Co. v. Coal Co;, 10 Pickle, 307: General Assessment Law. 175 2. Railroad commissioners to back assess and reassess railroads, when; comptroller formerly assessed them, when omitted. — The rail- road commissioners are ex officio the State tax assessors of railroads, who are authorized to back assess or to reassess railroad property under Acts 1897, ch. 5, sees. 1 and 20; Acts 1897, chs. 7 and 10; Acts 1898 (ex. ses.), ch. 5; Acts 1901, ch. 163; and especially Acts 1897, ch. 5, sees. 1 and 20, and Acts 1897, ch. 10, Code Supplement (1904), pp. 199-206, and compiled in this work on pp. 265-280. Previous to these statutes, the comptroller of the State, as collector of the taxes due by railroads to the State, was authorized and empowered to assess their distributable property when omitted from assessment by the regular assessors. State v. Railroad, 14 Lea, 59-61; State v. Railroad, 12 Pickle, 392-406; Railroad v. Williams, 17 Pickle, 149. 3. Distributable railroad property to be assessed, back assessed, and reassessed by railroad commissioners, and not by county trustee. — Assessment of omitted railroad property by the county trustee for county taxes before statutes providing for assessment by State board of assessors. Shelby Co. v. Railroad, 16 Lea, 401, 410, 411; State v. Railroad, 12 Pickle, 404-406 (declaring law for back assessment of railroad property under existing statutes). Assessment of railroad property omitted by railroad assessor may be made by county trustee, and, on appeal, by the chairman of the county court. Railroad v. Lauderdale Co., 16 Lea, 688; Iron Cos. v. Pace, 5 Pickle, 716 (inadequately assessed property may be reas- sessed); Grundy Co. v. Coal, etc., Co., 10 Pickle, 304; State v. Rail- road, 12 Pickle, 401-404 (distinguishing the case of Railroad v. Lau- derdale Co., 16 Lea, 688, as applicable alone to the localized property of the railroad, and not to its distributable property, but suggesting that the railroad property in this case might well have been treated as localized property, though this fact was not mentioned in the opin- ion). But under the foregoing note 2, it is shown that the railroad commissioners are authorized by the statutes there cited to assess, back assess, and reassess the distributable railroad property, and the county trustee cannot do so. — Ed. 4. Special statutes for back assessments and reassessments are not repealed by implication by general assessment act omitting such provi- sions. — Special statute for correction and revision of the assessment of back taxes is not repealed by implication by general assessment act omitting such provisions in the special statute. Iron Cos. v. Pace, ■5 Pickle, 707, 710-719; Zickler v. Bank, 20 Pickle, 299 (but our latest general revenue statute repeals all earlier ones). 5. Code section omitted, because in this act. — Section 820 of the Code is omitted here, because its provisions are suspended or super- seded by the fuller provisions contained in section 38 of this act, as shown on p. 200. 176 Tennessee Tax Digest. 821. Taxes barred after six years. — All State, county, school, railroad, and municipal taxes assessed on property, and all State, county, or municipal privilege taxes, and all poll taxes, shall be barred, and any lien for such taxes be canceled and extinguished, unless the same are collected, or suits for the collection shall have been instituted within six years from the first of January of the year for which such taxes accrued. (1885, ch. 24, sec. 1.) 822. Duty of court when statute pleaded and sustained. — It shall be the duty of the coiirt in which proceedings con- cerning the collection of taxes may be brought, where the same shall be barred under the provision of the preceding sec- tion, when this statute is pleaded, and the truth of the plea appears to the satisfaction of the court, to dismiss the cause, and order that the officer having the respective tax books in charge, enter thereon, opposite the name of the taxpayer, a memorandum of the judgment of the court. (1885, ch. 24, sec. 2.) Municipal taxes not barred before statute. — Before this statute, it was held that municipal taxes were not barred by the statutes of lim- itations. Memphis v. Looney, 9 Bax., 134-136; Sims v. Chattanooga, 2 Lea, 700; Elliott v. Williamson, 11 Lea, 42. Judgment against revenue collector is not "back taxes." — A judg- ment against a defaulting collector of revenue and his sureties is not ** back taxes " in the sense of the statute authorizing the payment of back taxes in the certificates of indebtedness issued in substitution of the notes of the Bank of Tennessee under Acts 1883, ch. 104. Gaines V. Galbreath, 14 Lea, 360, 369. LIEN FOR TAXES. (Section 31.) Sec. 31. Lien for taxes, and extent thereof. — The assessed taxes on all real estate, personalty, railroad, telegraph and tel- ephone companies, and all damages and costs accruing thereon, shall be and remain a first lien upon such property from the tenth of January of each and every year for the taxes of that year ; and said taxes shall be a lien upon the fee in said prop- General Assessment Law. 177 erty, and not merely upon the interest of the person to whom said property is or ought to be assessed, but to any and all other interests in said property, whether, in reversion or re- mainder or of lienors, or of any nature whatever, and the whole proceeding for collection of taxes from the assessment to sale for delinquent [delinquency] shall be a proceeding in rem, and shall not be invalid on account of such land having been listed or assessed for taxation to any one as owner or owners or to any person or persons not the owner or owners or to unknown owner or owners ; provided, however, that where there is as- sessable under this act a leasehold interest in real estate or any improvements on real estate, which said real estate is exempt from taxation in the hands of and to the owner thereof, the taxes assessed against such leasehold interest or interest in improvements on such exempt real estate shall be a lien only upon such leasehold interest or interest in improvements, and not upon the interest of the owner of the fee or the remainder or reversion of the fee. See Acts 1897, ch. 5, sec. 15, post, p. 276; Acts 1901, ch. 48, sec. 10, post, p. 282. 1. Tax lien is superior to mortgage lien. — The tax lien is superior to the mortgage lien, regardless of the time when the taxes accrue, whether before or after the execution of the mortgage; and in a fore- closure suit, the taxes will be paid out of the proceeds of the sale. Dunn V. Dunn, IS Pickle, 598, 599-612. 2. Tax lien lost by laches, when. — The lien for taxes may be lost by laches, and is lost where an action to enforce the lien is permitted to slumber in the court for eleven years without the taking of a single St :? therein; and the lien so lost ceases to be an incumbrance upon the land within the meaning of the covenants of a warranty deed con- veying the same, and a payment of such taxes by the purchaser does not entitle him to reimbursement by the seller. Robinson v. Bierce, 18 Pickle, 428, 433-438. 3. Lien against whole estate, including remainder estate, though land is assessed to life tenant only. — Our statutes (Acts 1897, ch. 1, sees. 4 (1), 27; 1899, ch. 435, sees. 5 (1), 33; 1901, ch. 174, sees. 5 (1). 32; 1903, ch. 258, sees. 5 (1), 32) create a lien for taxes against the ■yvhole estate, including the remainder estate, although the land is as- 178 Tennessee Tax Digest. sessed, and is assessable, to the life tenant only, and thus change the previously existing law. Hadley v. Hadley, 6 Gates, 156, 158-164. As to the previously existing law, see Ferguson v. Quinn, 13 Pickle, 48. The above statute is not materially different on this point from the provisions of the statutes construed as shown in this note, and the same construction should be given to the above statute as that given to the statutes so construed. — Ed. 4. Statutes making taxes assessed to a life tenant a lien on re- mainder estate are constitutional. — Our statutes (Acts 1897, ch. 1, sees. 4 (1), 27; 1899, ch. 435, sees. 5 (1), 33; 1901, ch. 174, sees. 5 (1), 32; 1903, ch. 258, sees. 5 (1), 32) creating a lien against the remainder estate, where the land is assessed to the life tenant, are not repug- nant to the provisions of our State and federal constitutions (State const., art. 2, sec. 28; art. 1, Sec. 8; U. S. const., 14th am.), requiring all property to be taxed according to its value, and forbidding the deprivation of property without due process of law. Hadley v. Had- ley, 6 Gates, 156, 159-175, citing numerous cases. And, for the same reason, the above statute is constitutional. — Ed. 5. Penalty on taxes against life tenant does not attach to remainder estate for nonpayment by life tenant. — The remainder estate is not liable for the penalty prescribed by statute for the nonpayment of taxes, where assessed to life tenant And not paid by him, although such remainder estate is liable for the taxes. Hadley v. Hadley, 6 Gates-, 156, 175, 176, citing and construing Acts 1897, ch. 1, sees. 59, 66; Acts 1899, ch. 435, sec. 50; Acts 1901, ch. 174, sec. 49; Acts 1903, ch. 258, sec. 49. COUNTY BOARD OF EQUALIZERS. (Sections 32-32z.) Sec. 32. Qualifications; eligibility; election; powers; cities to appoint same, when. — The quarterly court of each county shall, at the April session, from the dififerent sections of the county, elect five (5) freeholders and taxpayers, each of whom shall have been a citizen of the county for not less than six years — provided, that no person shall be elected who has served on the county board of equalization within five years next be- fore said election ; and provided, further, that justices of the peace shall be ineligible to election on said board — who shall constitute a county board of equalizers invested with the pow- ers and duties of equalizing assessments and computing values for taxation as hereafter [" hereinafter," in sections 32f-32i, General Assessment Law. 17^ 321, 32m, and 32t] prescribed ; provided, however, in taxing districts of a population of 60,000 or over according to the federal census of 1900 or any subsequent federal census, two members of the board shall be appointed by the city council or existing governing board of such taxing district; and pro- vided, further, that in cities having a population of not less than 5,000 nor more than 60,000 one member of said board shall be appointed by the city council or governing board of such city. Sec. 32a. County judge or chairman to appoint, when. — If said court shall fail to elect, the judge or chairman of the county shall appoint the members of the board, and shall also fill such vacancies as may occur. Sec. 32b. Meeting and sitting of board. — Said county board of equalizers shall, the first Monday in June of each year, meet and sit in regular session as necessity may require until the equalization has been completed, but not to sit longer than six days in counties having a population of 10,000 or under by the federal census of 1900 or any subsequent federal census, and ten days in counties having a population of over 10,000 and under 20,000 by the federal census of 1900 or any subsequent federal census, and fifteen days in counties having a popula- tion of over 20,000 and under 35,000, and twenty-five days in counties having a population of over 35,000, the last federal census to govern ; but the county judge or chairman, when the court cannot act, may extend the time, if in his judgment the public welfare shall require it, but not beyond the time here- inafter provided for a return [of] assessment to the county court clerk. Sec. 32c. Organization of board; quorum; record; compen- sation. — Each board of equalizers shall elect one of its mem- bers a chairman and one secretary of the board, and a major- ity of the board shall constitute a quorum for the transaction of business. Said board shall keep a daily record of its trans- actions, and sign the' same, and its members shall be paid by i8o • Tennessee Tax Digest. the county a compensation for their services not to exceed $2 per day. Sec. 32d. Assessment lists to be delivered to board by county court clerk. — The county court clerk shall, at the first day's session of the board, deliver the county assessment lists or rolls to said board for its consideration. Sec. 32e:. Board to turn records, papers, and assessment lists over to county court clerk. — Upon the completion of the du- ties of the board, the records and papers of the board shall be turned over to the clerk of the county court for preservation, together with the assessment lists. See sec. 32n, post, p. 184. Sec. 32f. Duties and powers of board. — It shall be the duty of the board to carefully examine, compare, and equalize the county assessments ; to eliminate from its lists property exempt from taxation ; to hear any just complaints of any party or par- ties feeling aggrieved on account of excessive assessment of property, and if, in their judgment, the property is assessed at more than its actual cash value, it shall be reduced to the actual cash value of the same ; to correct any and all errors arising from clerical mistakes or otherwise that may come or be brought to the attention of the board, and the corrections made, if any, shall be entered upon the assessment books, with- out in any way altering the assessment lists. Said board shall have the power, and it is hereby made the [its] duty, to in- crease or lower the entire assessment roll or any assessment contained therein so as to equalize the assessment of all prop- erty contained therein, and make such assessment conform to the actual cash value of the property described in the as- sessment. If the property described in said assessment lists or any part thereof shall have been assessed at less than the actual cash value thereof, the value of the same shall be in- creased so as to conform to the actual cash value thereof; or if any property designated in said assesssment lists shall have General Assessment Law. i8r been assessed at more than the actual cash value thereof, the same shall be reduced so as to conform to the actual cash value thereof ; it being the intention of this act that the county board of equalizers shall equalize and compute the value of all the property in the county upon the standard of the actual cash value thereof, estimated at the amount of money the property would sell for if sold at a fair, voluntary sale. Duty of county boards to observe rules and the regulations pre- scribed by the State board of equalization. See sec. 37 (14a), post, p. 197. Board cannot alter or change assessments of lands for previous year, when. — The county board of equalizers have no power to change or alter assessments of lands made the previous year and standing un- der the law for the current year, except in cases specifically designated in Acts 1907, ch. 602, in sees. 19 and 20 (sees. 19-20d herein, ante, pp. 138, 139), and in such cases it is the primary duty of the assessor to make reassessments of lands. Opinion of Attorney-General Gates. Sec. 32g. Notice to property owner when assessment is in- creased. — No assessment shall be increased by the county board of equalizers until the property owner or owners afTected by said increase shall have been notified and given an opportu- nity to be heard. Sufficiency of notice cannot be considered or passed upon by county trustee. — Regardless of the sufficiency of the required notice, to a property owner, of the increase of assessments, the county trustee must require the payment of the taxes as certified to him, and cannot consider or pass upon the sufficiency of such notice. Opinion of At- torney-General Gates. 5ec. 32h. Board may examine witnesses and papers; obtain evidence; and administer oaths; perjury of witnesses. — The board may examine any person or persons as witnesses, and hear any proof that may be offered by any taxpayer [in] or about any question touching the value of any property, or of property described in the assessment roll. Said board shall have the power and authority to send for persons and papers, to examine and enforce the attendance of witnesses, and obtain 1 82 • Tennessee Tax Digest. any evidence or information that may be deemed material in the performance of its duties. Each member of the board shall have the power to administer an oath, and any person who shall willfully or corruptly swear falsely to any material fact before said board shall be guilty of perjury and indictment [in- dictable] for such offense. Sec. 32i. Property owner's right of complaint for inadequacy of assessments; board to^ hear evidence, and equalize assess- ments. — Any owner of property liable for taxation in the State shall have the right, in person or by his agent, to make com- plaint before said board that other property or properties in the county have been assessed at less than the actual cash value thereof or at a less percentage of value than complain- ant's own property. Upon such complaint being made before the board, it may hear any evidence or witness offered by the complainant, or may take such steps as it may deem ma- terial to the investigation of the complaint, and pass upon the question justly and equitably according to the standard here- in established of an actual cash valuation of property. The board may inquire as to the valuation of the various classes of property in the respective districts and wards of the county, and make such changes by way of increase or decrease in the valuation as may be necessary to equalize the same as between the districts and wards, and to determine the rate per cent, of increase or decrease to be added or deducted in order to make a just and equitable equalization in the respective dis- tricts and wards, so as to conform throughout the county to a just and equitable standard, which standard in such case shall not be less than the actual cash value of the property. Sec. 32j. County board to report to State board. — The county board of equalizers shall make out and transmit to the State board of equalization a summary, showing the number and value of acres assessed, the number and value of town lots and improvements thereon, the value of personal property as- sessed, the number of polls assessed, and also a brief summary General Assessment Law. 183 of all the testimony taken before the board in regard to the equalization of property. Sec. 32k. Tabulated statement of sales to be made by board and county register ; and it or a certified copy to be forwarded to the State board. — If there should be upon the assessment roll any lots or parcels of realty sold at a voluntary sale, evi- denced by registration within twelve months before the meet- ing of the board, it shall be the duty of said board and of the county register to tabulate the same by civil districts and wards, and the assessed and equalized value of said lot or par- cel, and for this purpose said board and the county register shall examine the registration book [books] of the county, but the description of the property need not be sent [set] out ; pro- vided, the name of the grantor and grantee are included with said other said facts in said tabulation. The sale price of such realty in the respective districts and wards may be considered by the board as evidence in computing the values of like prop- erty in the same ward or district, allowing due consideration for the differences between cash and credit sales, and giving such evidence such weight as it may be fully entitled to in con- nection with other evidence before the board. It shall be the duty of said board before the adjournment of the same to for- ward said tabulated statement or a certified copy thereof to the State board of equalization. See sec. 32r, post, p. 185. Sec. 321. Board to examine assessors. — It shall be the duty of the said board to bring before it each assessor and deputy assessor of the county and propound to him such questions as are in the opinion of the board proper to ascertain the man- ner in which assessors arrived at the value of the property as- sessed by them and such questions as will aid said board in the equalization of values. See sec. 32w, post, p. 187. 1 84 Tennessee Tax Digest. Sec. 32m. Board's action is final, except revision or change by State board. — When the county board of equalizers shall have determined the matters of equalization and values before it and within its jurisdiction, such action shall be final, except in so far as the same may be revised or changed by the State board of equalization. Sec. 32n. Board's certificate to assessment rolls upon return- ing same to county court clerk. — Upon returning the assess- ment rolls of the county to the county court clerk, the said board of equalizers shall append to or indorse upon the same a certificate signed by each member, viz. : We, the undersigned members of the board of equalizers of the county of , do hereby officially certify that we have equalized, computed, and fixed the values of all properties set out in the assessment rolls of said county upon the standard of the actual cash value of the same by raising the values of all properties assessed at less than the actual cash value there- of to the actual cash value of the same, or by reducing the values of all properties assessed at a greater than the actual cash value thereof to the actual cash value of the same, and otherwise faithfully and honestly obeyed the requirements of the assessment laws of the State and kept our oaths of office. Witness our hands this day of . See sec. 32e, ante, p. 180. Sec. 32o. Oath of members of board before assuming duties. — Each member of the county board of equalization, before en- tering upon the discharge of the duties of his office, shall, be- fore the judge or chairman of the county court, take and sub- scribe to the following oath, to be filed with the clerk of the county court, viz. : State of Tennessee, county. I, , member of the board of equalization of said county, .do hereby solemnly swear (or affirm) that I will, without fear, favor, or affection, perform the duties required of me by my oath of office and the laws of the State ; that I will carefully examine, compare, and equalize all assessment lists and values General Assessment Law. 185 of property in said county designated in the assessment rolls, and equalize, fix, and compute the value of all such properties upon the standard of an actual cash valuation as directed by the laws of the State by raising the value of all properties as- sessed at less than the actual cash value of the same to the actual cash value thereof, and by reducing the values of all properties assessed at greater than the actual cash value of the same to the actual cash value thereof, and in all respects faith- fully, honestly, and impartially do and perform each and ev- ery duty imposed upon me as a member of said board by the laws of the State. '■ . Sworn to before me, this the day of . — . Sec. 32p. Certified copies of oaths to be sent to State board, when. — On request of the State board of equalizers the clerk of the county court shall make certified copies of said oaths and forward the same to the said State board of equalizers. Sec. 32q. Unlawful for member of board to act without tak- ing oath. — It shall be unlawful for any member of a county board of equalization to enter upon or undertake to discharge the duties of his office without first taking, before entering upon the duties of his office, the oath hereinbefore provided. Sec. 32r. Unlawful for board to fail to send tabulated state- ment of sales or certified copy thereof to State board. — It shall be unlawful for any county board of equalizers, or any mem- ber thereof, to fail, refuse, or neglect to prepare and promptly forward to the State board of equalization a comparative taou- lated statement (or certified copy thereof), to be taken from the register's office and assessment list as hereinbefore pro- vided. See sec. 32k, ante, p. 183. Sec. 32s. Board to report assessors for inadequate assess- ments; proceedings against assessors by district attorney or revenue agent. — It shall be the duty of the members of the county board of equalizers, when it is known to or reasonably suspected by any one of them that any assessor or deputy has i86 Tennessee Tax Digest. knowingly, willfully, or negligently assessed any property at less than the actual cash value of same, to report the same to the district attorney or a revenue agent of the State, whose duty it shall be, upon receiving such information, to institute proceedings against the assessor upon his bond to recover the penalty hereinafter prescribed. See sec. 33, post, p. 188; sec. 77h, post, p. 254. Sec. 32t. Unlawful for board to equalize assessments at less than actual cash value. — It is hereby declared unlawful for any county board of equalization, or any member thereof, to will- fully, knowingly, or negligently compute, fix, or equalize, or to willfully, knowingly, [or] negligently permit or suffer the same to be done, the value of any property at less than its actual cash value. Sec. 32u. Proceedings against county board for penalty for equalizing at less than cash value ; duty of State board, comp- troller, district attorney, and revenue agent. — If in equalizing the properties it shall come to the knowledge of the State board of equalization, or should it have reasonable grounds to believe such is the case, that any county board of equal- izers, or any member thereof, has violated this provision, it shall be the duty of said State board of equalization to imme- diately notify the comptroller of the treasury of the same, and it shall thereupon be the duty of said comptroller to immedi- ately direct a revenue agent of the State, or the district attor- ney of the district in which the offense is committed, to insti- tute proceedings to recover the penalty hereinafter prescribed, which said direction shall be complied with by such district at- torney or revenue agent. See sees. 33 and 33a, post, pp. 188 and 189; sec. 77h, post, p. 254. Sec. 2i2Y. County boards to report taxpayers not swearing to schedule or returning same, when; State board to do so; proceedings against assessors for failure to report; prosecu- tion of taxpayers for failure ; neglect of board is unlawful. — It General Assessment Law. 187 shall be the duty of the county board of equalizers to investi- gate as to whether assessors or deputy [deputies] have made and transmitted the list, to the district attorney, of taxpayers who shall have failed or refused to take the oath of affirmation required by law to tax schedules, or who have refused, neg- lected, or failed to return tax schedules as required by law ; and if the assessor has failed to perform this duty, then said board shall report the same to the district attorney or to a revenue agent of the State, whose duty it shall then be to institute pro- ceedings against the assessor for the penalty herein prescribed ; and in case of such a failure on the part of the assessor, it shall be the duty of the State board of equalization to prepare and transmit to the district attorney a list of the taxpayers who shall have failed to perform the requirements of this act here- inbefore set out, and thereupon such district attorney shall ex officio prosecute the delinquents ; and it shall be unlawful for the county board of equalizers and the members thereof to fail, refuse, or neglect to perform this duty before the com- pletion of their duties of equalization. Sec. 32w. Unlawful for board to fail to transmit answers of assessors. — It shall be unlawful for the members of any county board of equalizers to fail, refuse, or neglect to report and transmit to a district attorney or State revenue agent such an- swers of assessors or deputy assessors, elsewhere required in this act [section 321], as show or indicate they have assessed any property at less than the actual cash value of the same. See sec. 321, ante, p. 183. Sec. 32x. Officials' neglect to perform duties is a misde- meanor; fine. — It shall be unlawful and a misdemeanor for any judge or chairman of the county court or clerk of the county court or county register to fail, refuse, or neglect to do and perform any duty imposed by this act with regard to returning or forwarding statements to the State board of equal- ization as provided for in this act, and upon conviction the of- fender shall be fined not less than $50 and not more than $100. 1 88 Tennessee Tax Digest. Sec. 32y. Assessment to be prepared for board, how. — The books prepared for the use of the assessor shall have two ad- ditional columns after the total valuation column for the pur- pose of showing the action, if any, of the county board of equalizers on assessments, one of which shall show the in- crease and the other the decrease in valuation made by said board. These two columns shall be added to get the total increase and decrease in the district. Sec. 32z. County court clerk to prepare tabulated statement and mail same to State board; fine and penalty for failure. — The clerk of the county court shall, within ten days after the board of equalization adjourns, make out a tabulated state- ment by districts and wards, showing the number of acres as- sessed and value, the number of lots assessed and assessed value, the value of personalty assessed, the total value of all property, and the total increase and decrease made by the board of equalization in each district, and shall forward said statement to the State board of equalization by registered mail. The clerk shall be liable to a fine of $10 each day he fails to mail said statement to said State board of equalization, which shall be in addition to the penalty hereinafter prescribed. See sees. 33-36, embraced under next heading below. MISDEMEANORS AND PENALTIES FOR VIOLATION OF THIS ACT. (Sections 33-36.) Sec. 33. Penalty for failure in performance of duties; recov- erable from assessors and equalizers by motion or suit. — Each assessor or deputy assessor or member of the county board of equalizers who violates, neglects, or fails or refuses to com- ply with any of the provisions of this act, unless the same is otherwise expressly made punishable as a misdemeanor, shall pay and forfeit to the State of Tennessee the sum of not less than $50 nor more than $100 for each offense, which penalty shall be recovered of the offender and his sureties on his bond General Assessment Law. I89 in the case of assessors and deputies and of the members of the board of equalizers personally, in any court of record in the county or before any justice of the peace of the county, by motion on five days' notice or by suit instituted for the pur- pose. Sec. 33a. Whose duty to institute proceedings. — It shall be the duty of each district attorney, revenue agent of the State, and county judge or chairman, when it comes to his knowl- edge, or he has reasonable grounds to believe that the provi- sions of this act have been violated, to institute proceedings by such motion or suit to recover the penalties prescribed by this act. See sec. 37, subsec. 15, post, p. 197. Sec. 34. Compensation not to be drawn till duties performed by assessors and equalizers, except in certain counties. — It shall be unlawful for any assis^^tif oV' deputy assessor or any member of any county board of equalizers to draw or receive any compensation for services, or for any county judge or chairman to issue any warrant for the same, until such as- sessor or deputy assessor or member of said board shall have fully kept and performed each and every one of the require- ments of this act, and the failure to keep and perform any of the same shall be held and deemed a waiver of any right to any compensation for services ; and provided, further, that this section shall not apply to counties having a population of 60,- 000 or more, in which case the salary shall be paid monthly by warrant of the county judge on the county trustee. Sec. 35. Misdemeanor for officials to fail to observe this act ; fine. — Any judge or chairman of the county court or clerk of the county court or district attorney or revenue agent who fails, neglects, or refuses to obey and observe the require- ments imposed upon him by this act shall be guilty of a misde- meanor, and upon conviction shall be fined not less than $50 nor more than $100. 190 Tennessee Tax Digest. Sec. 36. Oaths to be preserved by county court clerk. — The clerk of each county shall, in a well bound book, which the county shall furnish at its expense, keep and preserve the said oaths prescribed by this act, to be taken by assessors, deputies, and members of county boards of equalizers, except the oath of members of county boards of equalizers, to be forwarded to the State board of equalizers. STATE BOARD OF EQUALIZATION. (Section 37.) Sec. Z7 . Creation of board, powers and duties.— The secre- tary of State, treasurer, and comptroller of the treasury of the State, and their successors in office, are hereby created a State board of equalization and invested with the powers and re- quired to perform the duties hereinafter prescribed, yiz. : (1) Organization, sessions, quorum, records to be made and kept. — Said board shall hold its sessions at the Capitol, Nash- ville, Tennessee, at the first session of which it shall elect one of its members chairman and one secretary of the board. A majority of the board shall constitute a quorum for the trans- action of business. Minutes of each day's session of the board shall be kept and signed by its members. The records of the board shall be kept in the office of the secretary of State for preservation. Action of Iwo members is valid; action is not vitiated by presence of a third person as substitute for absent member, when. — The pres- ence and concurrence of two members as a quorum at a regular meet- ing is sufficient to render the board's action vahd, and the presence at such meeting of a third person, as a substitute for the absent mem- ber, does not vitiate the action of the board, especially when it does not appear that he exercised any control over the decision reached. Carroll v. Alsup, 23 Pickle, 257, 269-273; Turner v. State, 3 Gates, 593, 608. (2) No compensation ; oath to be taken and filed. — It shall be the duty of the officials hereinbefore named to discharge the duties of said board without compensation; but before General Assessment Law. 191 entering upon the discharge of such duties they shall take and subscribe to an oath that they will fairly and impartially perform the duties imposed upon them by this act, and equal- ize, fix, and compute the values of all properties within their jurisdiction so as the value thereof shall conform to the standard of the actual cash value of the same. Said oath shall be taken before some person authorized by law to adminis- ter an oath and be filed in the office of the secretary of State for preservation. (3) Board is constituted upon taking and filing oath. — Upon taking and filing said oath, said officials shall at once become and constitute a State board of equalizers as herein provided, with the power and authority to hold meetings and transact business as a State board of equalizers. (4) Rules, regulations, and forms for its own use and county board's use; evidence. — Said board is hereby vested with the power to make such rules and regulations and prepare such forms as it may deem proper for its use and government or for the use and government of county boards of equalizers ; to ob- tain such evidence, information, and statistics as may be deemed material as to the value and conditions of properties to be equalized ; to regulate and prescribe the mode of taking evidence, whether by affidavit, deposition, or otherwise; to send for papers and witness [witnesses] ; to compel the attend- ance of witnesses and administer oaths to witnesses ; and to do and perform such other acts as may be necessary to accom- plish the purposes of its creation. (5) Biennial sessions or equalization sessions to be held, when and where. — In addition to other sessions held for other purposes as prescribed in this act, said board shall hold bien- nial sessions at the Capitol, at Nashville, Tennessee, commen- cing to [on] the second Monday in July, 1908, for the purpose of equalizing under this act the assessment of properties as- sessed during the year the biennial session is held, which bi- 192- Tennessee Tax Digest. ennial session shall be known as the " equalization session " of the board. (5a) Statute is notice. — Taxpayers and property owners without further notice than this act are required to take notice of said biennial session. 1. Statute operates as notice.— The statute gives the only notice that is necessary of the board's action, at its biennial session, in in- creasing or decreasing the valuation of an individual's property for the purpose of equalization. Carroll v. Alsup, 23 Pickle, 257, 274-282. 2. Notice required of increases in assessments mad^ at any session except the biennial session. — But where, the board contemplates in- creasing the assessments at any session other than the biennial ses- sion, notice must be given to the taxpayer requiring him to appear upon some designated date and to show cause why his assessment should not be raised for the purpose of equalizing assessments, or the increase in -the assessments will not be authorized. Opinion of At- torney-General Gates. 3. Notice is not required for purpose of adopting a rule, when. — But for the purpose of adopting "some rule as the basis of equalizing the assessments of banks throughout the State," notice to each particular bank is not necessary; and the reports of banking institutions, which form the basis of the assessment, may be looked to in applying the " rule '* which may be adopted by the board, following the statute, in order to equalize assessments throughout the State. Opinion of At- torney-General Gates. (5b) Biennial session continues to the 15th of September; continuances. — -Said biennial session shall continue from time to time or day to day until the said duties of equalization are completed, but shall not continue longer than the 15th day of September following the commencement of the biennial ses- sion. (5c) Biennial session adjourned to other places. — If during such biennial session it shall be deemed necessary, adjourn- ment of the session may be made to any other place in the State designated by the board. (5d) Board may send its members for information and evi- dence ; appeals. — During such biennial session or at any other General Assessment Law. 193 time said board shall have the power to send any of its mem- bers to any portion of the State to obtain information and evi- dence deemed material [to the duties of equalization] and to hear questions upon appeal from the action of trustees and county court clerks. As to appeals, see subsec. 11, post, p. 196. (5e) Other sessions to be held, when. — In case of back as- sessments and reassessments to the duties of equalization,' said board, whenever deemed material, may hold at any time ses- sions at said capitol or elsewhere for the transaction of busi- ness other than that to be performed during the biennial ses- sions, which sessions may be held either before or after said biennial sessions, and the first of which shall not be held later than the first Monday in December, 190 — [1907]. 1. Phrase "to the duties of equalization" should be transposed, and placed where. — The phrase " to the duties of equalization " occurring after the word *' assessments " should be transposed to the sub- section 5d above and placed after the word " material," as there indi- cated in brackets. This transposition is in accordance with Acts 1899, ch. 435, sec. 39, subsec. 5. The error first occurred in Acts 1901, ch. 174, sec. 38, subsec. 5, and the error was copied in Acts 1903, ch. 258, sec. 38, subsec. 5, and in the above act. The said phrase might also be transposed and placed immediately after the word " mate- rial " in the above said subsection 5e. The said phrase might with equal propriety be used after the word " material " in both subsections 5d and 5e. But it is certainly out of place where it occurs in the text— Ed. Number " 190 — " used for number 1907, as indicative of the year. — The number " 190 — '" used to indicate the year of our era was evidently intended for the number 1907, as indicative of the year. This appears to be obvious from a comparison with the previous assessment laws. — Ed. (6) Taxpayers may complain of inadequacy and inequality of assessments, how and when. — During biennial sessions of said board, any taxpayer of the State, or any owner of property subject to taxation in the State, shall have the right to a hear- ing and determination of any complaint such taxpayer or own- 7 194 Tennessee Tax Digest. er of property may make on the ground that other property than the property of such taxpayer or owners [owner] has been assessed at less than the actual cash value of the same or at a less percentage of value than the property of such tax- payer or owner of property, whether his, her, or its property is within the jurisdiction of said board or some other authority to equalize ; but the complaint, subject to amendment for cause, shall be specific, in writing, and filed with said board within five days after the first day of the biennial session. Remedy of taxpayers for disproportionate assessments. — Assess- ments not exceeding the actual cash value required by the constitution and statutes cannot be decreased for purposes of equalization with assessments made upon inadequate valuations. The legal remedy in such cases is to raise all inadequate assessments to the required actual cash value, and not to reduce the assessments made as required by law. Carroll v. Alsup, 23 Pickle, 257, 283-293. (7) Equalization to be made, how; limit and extent of method. — It shall be the duty of said State board of equalizers at such biennial sessions to equalize, compute, and fix the values of such properties as are within its jurisdiction by the standard of the actual cash value of the same, and for said purpose said board shall have the power to reduce or increase values of properties so as the values of all assessments equal- ized by said board shall conform to said standard of actual cash values. Equalization of such properties may be made by said board of [by] classifications of properties, and by wards, civil districts, or counties, or in such manner as it may deem will best enable the board to justly and equitably equalize as- sessments in conformity with said standard ; provided, the State board of equalization shall not have the power to raise the taxes of a whole county or reduce the same by a per cent, on the whole, but shall pass upon each piece of property spe- cifically in raising or reducing taxes. See subsec. 18, and note 1 thereunder, post, pp. 198, 199. Method of making equalization.— The State board of equalization is empowered to pass upon and consider individual assessments, and General Assessment Law. 195 increase ^or decrease them as in its judgment may appear right and proper, as M'ell as to equalize assessments between the several coun- ties. Carroll v. Alsup, 23 Pickle, 257, 274. This decision was based upon Acts 1899, ch. 435; but it will be observed that it is provided by this present assessment law that the board " shall not have the power to raise the taxes of a whole county or reduce the same by a per cent, on the whole, but shall pass upon each piece of property specifically in raising or reducing taxes." — Ed. (8) Record to be kept and certified to county court clerks to be entered on tax books. — Said board shall enter or cause to be entered in a book prepared for the purpose a record of its action in equalizing properties, showing corrections and changes in assessments, increases and decreases. in the values of properties by percentage or otherwise, and proper and nec- essary certificates of the same shall be certified to the clerks of the county courts, who shall make proper and correct entries of the same upon the tax books, to be turned over to the county trustee. The word '* equalization " in the printed act should be " equaliz- ing," as here printed in the fourth line and as it appears in the en- grossed act signed by the speakers and the governor. — Ed. (9) What properties may be equalized. — Said board shall have jurisdiction of, and it shall be its duty to equalize at said biennial sessions, the assessments of all properties in this State, except such as are now required by law to be equalized by the governor, secretary of State, and treasurer, that is distributable and localized railroad properties and distributable telegraph and telephone properties. (10) Action of board is final. — The action of the State board of equalizers shall be final and conclusive as to all matters passed upon by [the] Board, and taxes shall be collected upon the valuation so fixed and found by said board. 1. Remedy by bill in chancery against the void action of the State board of equalizers jn the assessment of taxes. — The void action of the State board of equalizers in equalizing the assessment of taxes is not final and conclusive, and does not prevent the maintenance of a bill in chancery to restrain the certification of such void action in the 196 Tennessee Tax Digest. assessment of taxes and to prohibit their collection thereunder. Bris- coe V. McMillan, 9 Gates, 115, 127-129. 2. State beard of equalizers is a quasi court of record, and its action cannot be collaterally attacked, except where void for fraud or want of jurisdiction. — The State board of equalizers of the assessment of taxes constitutes a quasi court of record, and its findings in the exercise of the jurisdiction conferred upon it have the force and effect of judicial determinations, and cannot be collaterally attacked, except where void for fraud or the want of jurisdiction. Briscoe v. McMillan, 9 Gates, 115, 129-134. 3. But for irregularity in. failure to hear evidence, the remedy is by certiorari in a court of law. — The action of the State board of equal- izers in the assessment of taxes, within its jurisdiction and without fraud, is not subject to collateral attack by bill in chancery to restrain the certification of the assessment and extension of taxes according to its action, for irregularities in the modes of procedure or for not hearing any evidence, but for such irregularity in procedure the rem- edy is by certiorari in a court of law. Briscoe v. McMillan, 9 Gates, 115, 133, 134. (11) To hear appeals from back assessments or reassess- ments made by county trustees and county court clerks; ap- peals to be perfected and heard, when. — Said State board of equalization shall also hear appeals upon matters of back [as- sessments] or reassessments made by revenue agents or other officers of the State from county trustees or county court clerks. The right of appeal from the decision of said trustees or county court clerks in the matter of back [assessments] or reassessments is hereby given to the State and county or party assessed or reassessed; provided, said appeal is prosecuted wdthin ten days from the date of such back [assessment] or reassessment or attempt to back [assess] or reassess, and the trustee or county court clerk shall, upon such appeal being per- fected, certify his action to the State board of equalizers, v^hose duty it shall be to hear the matter in controversy within ten days from the filing with them or either of them the notice of appeal ; provided, said board is then in session. As to appeals, see subsec. 5d, ante, p. 192. General Assessment Law. 197 (12) Certificate of record of action. — When said board shall have finished the equalization of properties assessed during the year of such biennial session, it shall append to the record of its actions an official certificate signed by its members that the values of assessments equalized by it have been equalized, fixed, and computed in conformity with the standard pre- scribed by this act, and that all properties for the purpose of taxation shall be valued at the actual cash value thereof. (13) Board to report to legislature. — It shall be the duty of said board to prepare and transmit to the general assembly at its biennial sessions a report of their w^ork, together with such legislative recommendations as it may deem best for the in- terests of the State. (14) Evidence gathered from counties. — It shall be the duty of the judge or chairman and the clerk of each county court, county trustees, members of each county board of equalizers, and assessors to fill out and return blanks and furnish informa- tion, evidence, and affidavits when called upon to do so by the said State board of equalizers. (14a) County boards to observe rules and regulations pre- scribed by State board. — And [it shall] also [be] the duty of the members of the county boards of equalizers to observe such rules and regulations as may be prescribed by the said State board of equalizers for the use and government of county boards of equalizers. (15) Neglect of officials to be certified; penalties sued for; misdemeanors prosecuted. — It shall be the duty of the State board of equalizers to certify in writing any violation of or fail- ure, refusal, or neglect on the part of any assessor, deputy assessor, member of a county board of equalizers, judge or chairman or clerk of a county court, or county trustee, or other official, which certification shall be filed in the office of the State comptroller [. It shall thereupon be the duty of said comptroller] to direct, in case such ofifense is punishable with 1 98 Tennessee Tax Digest. a penalty, the proper district attorney or a revenue agent to institute proceedings as prescribed in this act to recover such penalty, and, in case the offense is punishable as a misde- meanor, the proper district attorney to ex officio prosecute the offender. See sec. 33, ante, p. 188; sec. 77h, post, p. 254. Omission supplied does not affect validity of statute. — The omis- sion supplied in brackets may not be authorized or warranted by the context; but its appearance in Acts 1903, ch. 258, sec. 38 (15), p. 675; in Acts 1901, ch. 174, sec. 38 (15), p. 347; and in Acts 1899, ch. 435, sec. 39 (14), p. 1128, shows that its omission here was merely a clerical error. The omission does not affect the validity of the statute, for the reason that the enforcement of the statute does not depend upon the direction of the comptroller. The district attorney can act with- out the direction of the comptroller, and may, in the exercise of his official discretion, refuse to obey the directions of the comptroller. The direction of the comptroller is merely advisory and informa- tory. — Ed. (16) Board to certify escaped property. — The vState board shall certify in writing to the comptroller of the State, to be delivered to the proper revenue agents, all evidence of any properties escaping taxation, with name of owners and loca- tions of the properties to be investigated and proceeded with as required by law. (17) Expenses to be paid, how. — All necessary and proper expenses incurred in the performance of the duties imposed under this act shall be paid out of the State treasury upon the sworn itemized statement of all the members of the State board of equalization. Such expense account shall be presented to the State comptroller quarterly ; and if approved by him, shah be payable upon his warrant. (18) Provisos; notice before change as a whole of county assessments; reasons for decision in writing; evidence. — Pro- vided, that the State board of equalization herein provided for, before the assessment on the property in any county in this State shall as a whole be raised or reduced or in any man- General Assessment Law. 199 ner changed, it shall be the duty of the said board to give ten days' notice in writing to the chairman of the county court or the county judge of the said county of their purpose on a day fixed in said notice, not less than ten days after the service of the said notice, to consider the assessment of property in said county ; and provided, further, that before the said board shall raise, reduce, or in any manner change the assessment of the pfoperty in afiy county, proof shall be taken by said board, and the board shall have the power to issue summons for wit- nesses, which sumiiions and the notices hereinabove provided for shall be executed by the sheriff or any lawful officer of the county ; and provided, further, that the board shall give its rea- sons for any action they may take, and the evidence taken before said board in its consideration of any assessment of the property of any county shall be reduced to writing and filed in the office of the secretary of State. 1. Assessments of a county not to be changed as a whole upon a per cent basis. —By subsection 7, ante, p. 194, it is provided that the board shall not have the power to raise the taxes of a whole county or reduce the same by a per cent, on the whole, but that it shall pass upon each piece of property specifically in raising or reducing taxes, and the provision in this subsection requiring notice before raising or reducing as a whole the assessment on the property in any county does not operate to nullify or repeal the former specific provision pro- hibiting such action altogether. The first provision is an express pro- hibition of doing what can only be permitted by inference by the last provision. A specific and express provision cannot be nullified or re- pealed by a mere inference to be drawn from a subsequent provision in the same act. — Ed. 2. Note on statute; correct readings suggested. — This subsection is awkwardly worded, but its meaning seems to be clear. A correct reading will readily occur to any intelligent person. The only obscu- rity that occurs seems to be caused by the oversight of the draughts- man, copyist, or printer, in using the phrase " State board of equali- zation " in the nominative case without any verb showing its action. The omission of the words ** the State board of equalization herein provided for '* occurring in the third and fourth lines would give a correct reading. Another correct reading would be shown by the retention of these words and the omission of the word "it" and the words " be the duty of the said board to " occurring in the fifth line of the published acts and in the sixth line herein. — Ed. 200 Tennessee Tax Digest. 3. Power is not exhausted by return of assessment roll, when. — The power and jurisdiction of the State board of equalization is not ex- hausted bj^ returning the assessment roll, with its certified conclusions, to the county court clerk, where its action was a mere matter of con- venience and not intended as a finality, and where the assessment of the .real estate in the county was left untouched; and the board may. in such case, recall the roll and complete its work in equalizing the assessments of the county. Carroll v. Alsup, 23 Pickle, 257, 269. See sec. 32z, ante, p. 188. ASSESSMENTS BY COUNTY TRUSTEE. (Section 38.) Sec. 38. Trustee to assess escaped property, when, and re- port it as " picked up " taxes ; assessments limited to current year and for three years preceding. — Should the property in any district or ward, or any part thereof, escape assessment or fail in any manner to be assessed, the trustee is hereby re- quired to assess the same at its actual cash value, and report the amount of the taxes thereon collected to the county court as "picked up" taxes at the same time he reports Hsts of er- rors, etc., giving a description of said property, district, or ward in which located, and the clerk of the court is hereby re- quired to certify a copy [copies] of said report to the office [officers] with whom the trustee by law is required by law to settle; and the trustee shall account for the same in making final settlements of his various accounts, but no assessment authorized by this section or by section 30 of this act shall be made for any other years than for the years in which said as- sessments shall be made and for three years preceding same. See Code, sees. 814, 815, 821, 822, ante, pp. 170 and 176. 1. Statute of limitations against taxes. — A city's claim for privilege taxes is subject to the bar of six years prescribed by section 821 of the Code, but not to the bar of three years prescribed by the general revenue law contained in Acts 1895 (ex. ses.), ch. 5, sec. 1 (7). Bank V. Memphis, 17 Pickle, 154, 168. But the said act (Acts 1895, ex. ses., ch. 5) is unconstitutional. It does not recite in its caption, or otherwise^ the title or substance of the law amended, as required by the constitution (art. 2, sec. 17). It General Assessment Law. 201 is not sufficient to refer, in the caption of the amendatory act, to the chapter and section of the acts of a certain session or year or to a certain chapter and volume of an authorized publication of acts sought to be amended. Railroad v. State, 2 Gates, 598, 602-611, 618; Goodbar V. Memphis, 5 Gates, 27-30. 2. Limitation of back assessments or reassessments. — Back assess- ments or reassessments may be made for the current year and for the three years preceding the current year and exclusive of it. For instance, if the back assessment or reassessment is being made in the year 1907, it may be made for that year, and also for the three preced- ing years — 1906, 1905, and 1904. Opinion of Attorney-General Gates. 3. Repetition not affecting statute. — The repetition of the words •* by law ■■' in the twelfth line of this section as here printed is doubt- less a clerical error. This repetition does not occur in Acts 1903, ch. 258, sec. 39, p. 676; nor in Acts 1901, ch. 174, sec. 39, p. 348; nor in Acts 1899, ch. 435, sec. 40, p. 1129; nor in Acts 1897, ch. 1, sec. 47, p. 29; nor in Acts 1895, ch. 120, sec. 55, p. 223, in Gode, sec. 820. But this repetition does not affect the meaning or validity of the stat- ute.— Ed. 4. Error corrected. — The word " office " in the eleventh line as here printed appears in the engrossed act, but is misprinted " officer " in the published acts. It should be " officers," as shown in brack- ets.— Ed. MISCELLANEOUS PROVISIONS. (Sections 39-46b.) Sec. 39. County court clerk to make tax book, deliver to trustee, when; compensation. — The clerk of the county court shall make out from the assessment books in his possession a tax book, and deliver to the trustee said tax book on or before the first Monday of October each and every year, respectively, and he shall receive such compensation as the county court shall allow; provided, that the trustee shall have, at the date of his induction into office, entered into the several bonds in the amount of taxes as required by law. Sec. 39a. Tax books to be made out, how. — Said tax books shall be made out by districts, and shall be ruled in suitable and appropriate columns, and shall show names of owners in alphabetical order, the number of lots and blocks, number of 202 Tennessee Tax Digest. acres, description of the property as contained in the assess- ment roll, the value of each lot, tract, or parcel of land, the valuation of personal property under the appropriate head or items called for by this act, and the total valuation of real and personal property against each taxpayer ; also all poll taxes due according to said assessment books [. On the total val- uation of the real property of each taxpayer, the State, county, special, road, school, and municipal taxes shall be extended in appropriate columns separately, according to and at the rate levied by the proper authority for each of said purposes,] and a column [added] showing the total of all taxes levied for all purposes and to be collected from each taxpayer. Omission supplied. — In this section there appears to be an omis- sion, which is supplied in brackets. There is nothing in the context to warrant the insertion of the matter in brackets. The omission is apparent, and from an investigation of previous statutes it was found that the matter so supplied is contained in Acts 1903, ch. 258, sec. 40, p. 677; in Acts 1901, ch. 174, sec. 40, p. 348; in Acts 1899, ch. 435, sec. 41, p. 1130; in Acts 1897, ch. 1, sec. 48, p. 30; and substantially in Acts 1895, ch. 120, sec. 56, p. 224. While the matter supplied is not in the above statute, yet it should be followed and acted upon as though it was embraced in the statute, because it is the proper way to make out the tax books. — Ed. Sec. 40. City taxes on State assessments; tax books to be made to show what. — Taxes on property for municipal pur- poses shall be imposed on the value thereof as the same is ascertained by the assessment for State taxation, and shall be collected by the same officers at the time and in the manner prescribed for the collection of the State revenue, except as herein provided, and it shall be the duty of the clerk of the county court, in making out the tax. books, to place all the property "within the limits of any given municipality so that it will be separate from the other property, and by footing up the assessed valuations on each page and recapitulating such footings he shall show the aggregate valuation of all property within the limits of each incorporated town, city, or taxing district, and in the same manner he shall show the aggregate valuation of all property within the limits of the county. The General Assessment Law. 203 tax books for realty shall show the name of the owner, if known, the description of each lot, tract, or parcel of land, and the value thereof. Sec. 41. Taxes are payable, when; cities excepted; delin- quent city taxes. — All taxes — State, county, and municipal — to be collected under this act shall be payable the first Mon- day in October in each year, except municipal taxes of cities having a population of 100,000 or over by the federal census of 1900 or any subsequent federal census, and such other mu- nicipal corporations which, under existing laws, are authorized to collect their own taxes in property, privileges, and polls. All delinquent property taxes of all kinds of all municipal cor- porations shall be certified by the proper officer of said cor- porations to therr respective county trustees by the first of June of the year next after they accrue, and the property against which said taxes are assessed shall be sold by the trus- tee at the same time and as a part of his other sales, and the proceeds of such sales shall be disposed of and the property may be redeemd as elsewhere provided in this act; provided, that municipal corporations having the power under their charter to collect their own taxes can provide by ordinance for the collection of their delinquent taxes, except municipal corporations havmg a population over 14,000 and not oVer 20,- 000 by the federal census of 1900 or any subsequent federal census, and at the end of said section after the words '^ and polls " insert as follows : " Except such corporations as by the federal census of 1900 or any subsequent federal census that have a population of over 14,000 and not over 20,000, and all delinquent taxes not barred by the statute of limitations shall by the proper officer of such cities be certified to their county trustees by the first of June of each year, and the property against which said taxes are assessed shall be sold by the trus- tee at the same time and as a part of his other sales, and the proceeds of such sales shall be disposed of and the property may be redeemed as elsewhere in this act provided ; provided, nothing in this section shall apply to municipal corporations 204 Tennessee Tax Digest. which have a right under the provisions of their charters tc as- sess and collect their ow^n taxes on property, privileges, and polls." As to when taxes are due and payable, see sec. 48, post, p. 208. Statute inartificially drawn, but its meaning is clear. — This section is very awkwardly and inartificially drawn. It is not shown at the end of what section the language in quotation is to be inserted. As it is virtually a repetition of the provision beginning after the words " and polls " in the eighth line of this section as here printed, and end- ing before the quotation, it may be that the intention of the drawer was that the insertion of the quoted language should be made there, as a more definite and specific provision. The direction as to tlie place of the insertion may be disregarded, and the statute so read and interpreted seems to be clear in its meaning. — Ed. Sec. 42. Trustee to give receipt ; provisions as to receipts. — The trustees [trustee] shall give to each taxpayer a receipt, written in ink, for all the taxes paid by him, numbered, dated, and filled up, so as to show; in case of land, by whom and on what taxes were paid ; and it shall be the duty of the county court of each county in this State to furnish the county trustee of said county with a sufficient number of tax receipts printed in duplicate and in a blank form in a book or books numbered from one up, consecutively, and shall have the year for which said taxes are due printed in large figures, not less than one inch deep, on the face of each receipt. The trustee shall be charged with these receipts, and must in his final settlement account for each blank receipt so received by him, and no pay- ment to the trustee of any tax shall be legal and binding unless paid upon the regular tax receipt herein specified, and dupli- cate receipts shall be preserved in said book or books, to be submitted to the county court by the trustee whenever re- quired to do so, and said receipt book of duplicates, when filled, shall be filed in the office of the county court clerk for refer- ence, and shall be receipted for by the clerk and carefully pre- served in his office as a record for the protection of taxpayers who have paid their taxes and lost or misplaced their receipts ; provided, however, that in counties of 30,000 population or Geneeal Assessment Law. 205 over said duplicate receipts will remain in the trustee's office as a part of the records thereof. Sec. 42a. Poll tax receipts to be furnished by the county. — It shall also be the duty of the county court to furnish to the county trustee blank poll tax receipts not less in number than one and one-half times the number of polls assessed. Such receipts shall be printed in duplicate and all numbered from one up, consecutively, and bound in books of twenty-five, fifty, and one hundred each, and shall have the year printed in large figures on the face of the receipt not less than one inch deep each. Sec. 42b. Poll tax receipts to be given poll taxpayer ; realty and poll receipt combined. — Every poll taxpayer shall receive one of these receipts from the trustee or deputy trustee or con- stable ; provided, that one receipt shall be sufficient for realty and poll. Sec. 42c. Trustee charged with and to account for poll tax receipts. — The trustee shall be charged with these receipts, and must account for each receipt in his final settlement, ei- ther in money or by returning the receipts unused, or giving a satisfactory explanation for failing to do so. Sec. 42d. Misdemeanor to counterfeit poll tax receipts; fine. — It shall be a misdemeanor for any person to print, issue, or use any counterfeit poll tax receipts, punishable by a fine of not less than $100 nor more than $500. Sec. 43. Tax aggregates for comptroller and mayor to be furnished by county court clerk. — The clerk of the county court shall make out from said tax books an aggregate state- ment, showing the value of all town lots, the number of acres, and value of all tracts of land and the value of all personal property. This statement shall be made and the tax shown by civil districts and wards, and shall show the aggregate for the whole county from the items named. Said clerk shall spec- 2o6 Teknessee Tax Digest. ify in said statement which of said districts are suburban [ur- ban] or county [country] districts. This statement shall be forwarded to the comptroller of the treasury on or before the first Monday in November in each and every year. He shall also certify a like statement to the mayor of each municipality by said date. Sec. 44. Forfeiture of compensation by clerk. — Should any clerk of the county court fail to comply with the requirements of the three preceding sections [41-43 herein], when within his power to do so, he shall forfeit all claims for compensation for labor and services for making out and repairing [prepar- ing] said tax books. Sec. 45. Assessor to return names of persons exercising privileges. — It shall be the duty of the assessor to make a re- turn, to the county court clerk, of the name of each person, company, firm, or corporation engaged in any business liable in any way to pay a privilege tax in each district or ward under the provisions of law. Sec. 45a. Duty of county judge or chairman; clerk to ex- amine and report as to privileges. — It shall be the duty of the judge or chairman of the county court and of the county court clerk to examine the list so returned and compare the same with the list of persons paying privileges, and he shall report the result to the quarterly court at the July term following -the assessment, and the said report shall be read in full meeting of the county court and spread upon the minutes of the court. Sec. 46. Poll tax for schools shall be paid by whom. — Every male inhabitant between the ages of twenty-one and fifty years, except persons who are deaf, dumb, blind, or incapable of labor and of earning a livelihood, shall pay a poll tax for school pur- poses. Such persons as are liable to poll tax upon the tenth day of January of each year and exemption under this act shall be fixed according to the age of the person on the tenth day of January of each year. General Assessment Law. 207 Statute is inartificially drawn, but its meaning is clear. — The last sentence in this section as here printed is very inartificially and awk- wardly drawn, but the meaning is clear that the liability for the pay- ment of poll tax and the exemption therefrom is fixed according to the age of the person on the tenth day of January of each year. — Ed. Sec. 46a. Poll tax for schools ; amount. — The rate of taxation on every taxable poll shall be $1. Said poll tax shall be col- lected annually by the trustee of the county, and shall be ap- propriated for common school purposes in the manner pre- scribed by law. Sec. 46b. Poll tax not to be received without the property tax, except; liability of trustee for doing so, when. — Every taxpayer shall pay his poll tax, if liable for poll tax, at or be- fore the time he pays his pfoperty tax. No trustee shall re- ceive from any taxpayer his property tax and receipt him there- for until his poll tax is paid, if Hable for poll tax ; provided, the trustee shall not enforce this section where the taxpayer in good faith claims that he is not liable for the payment of the poll. Every trustee who violates this section or permits it to be violated by any of his deputies shall be held liable for all poll taxes that m^y become delinquent on account of such viola- tion, and any revenue agent may proceed against such trustee who shall receive from any taxpayer his property tax and re- ceipt him therefor until his poll tax is paid, if liable for poll tax; provided, the trustee shall not enforce this section where the taxpayer in good faith claims that he is not liable for the payment of a poll. Every trustee who violates this section or permits it to be violated by any of his deputies shall be held liable for all poll taxes that may become delinquent on account of such viola- tion, and any revenue agent may proceed against such trustee as a delinquent revenue collector as in Other cases of delin- quent revenue collectors. 1. Repetition in statute. — There is much repetition in this section copied from Acts 1903, ch. 258, sec. 47.— Ed. 2o8 Tennessee Tax Digest. 2. Poll tax cannot be received without payment of property tax. — This provision of the statute was intended to insure the prompt pay- ment of poll taxes, and should be construed so as to effectuate such object and purpose. It is the duty of the county trustees to refuse to accept the tax upon any particular piece of property without the payment of the poll tax due, for the year in question, from the person owning the property on the 10th of January of that year. It is imma- terial that the property was sold and transferred after the 10th of January. The purchaser in such case must pay the unpaid poll tax or cause it to be paid before the tax on the property so purchased by him will be received. Opinion of Attorney-General Gates. COLLECTION OF TAXES. (Sections 47-49p.) Sec. 47. County court clerk collects privileges and mer- chant's taxes. — The clerk of the county court shall collect all tax on privileges and merchants unless otherwise provided. Privileges collectible, by whom. — Privileges collectible by the county court clerk are set out in sees. 4 and 8 of Acts 1907, ch. 541, compiled herein, ante, pp. 18-68, and 78. Privileges collectible by the State comptroller are set out in sec. 5 of said act, compiled herein, ante, pp. 68-75. Privilege taxes payable to the insurance commissioner and State treasurer are set out in sees. 6 and 7 of said act, and compiled herein, ante, pp. 75-78. Privilege taxes payable to secretary of State are set out in sees. 9 and 10 of said act, and compiled herein, ante, pp. 80 and 81. Sec. 47a. County trustee collects other taxes as heretofore. — And the county trustee shall continue tO' act as the collector of taxes in accordance with the provisions of sections 1 and 2 of an act approved on the twenty-fourth day of March, 1875, entitled "An act more cheaply to collect the State, county, and municipal revenue." See sec. 29, ante, p. 164. Sec. 48. Taxes are due and payable to county trustee, and delinquent, when; interest and penalty; municipal and poll taxes. — Every taxpayer shall pay his State, county, railroad, municipal, highway, and school and all his property and poll General Assessmeintt Law. 209 taxes to said county trustee, except when otherwise provided by law, and said taxes shall be due and payable on the first Monday in October of each year, and shall bear interest from the first day of March following, and, in addition, a penalty of one per cent, for each month the taxes are delinquent to be added on the first day of each month, beginning with the first of March, except as otherwise provided in regard to municipal and poll taxes. i. Penalties may be imposed for the nonpayment of taxes. — The legislature lias the power to impose a penalty for the nonpayment of taxes, and to authorize the penalty to be enforced with the taxes, and such imposition is not in violation of the constitution (art. 1, sec. 8; art. 2, sec. 28). Myers v. Park, 8 Heis., 550, 561-564; Nance v. Hop- kins, 10 Lea, 511. 2. Penalty for nonpayment of taxes by life tenant does not attach to remainder estate. — The remainder estate is not liable for the pen- alty imposed by statute for the nonpayment of taxes properly assessed to the life tenant and primarily chargeable against him, but not paid by him, although the remainder estate is liable for the unpaid taxes. Hadley v. Hadley, 6 Gates, 175, 176. Sec. 49. Distress warrants after March 1st, and have force of executions from judgments. — All taxes remaining unpaid on the first day of March of each year shall immediately be col- lected by the county trustee by distress and sale of any per- sonal property liable therefor ; and the tax books in the hands of said trustee and the delinquent lists to be furnished, as here- in provided, to deputy trustee [trustees] or constables, shall have the force and effect of a judgment and a distress warrant and an execution from a court of record authorizing him to make such distraint and sale. Statutes authorizing distress warrants are valid as "the law of the land," and as authorizing " due process of law." — Statutes authorizing the ascertainment of the amount of taxes due from each citizen, and the issuance of a distress warrant to enforce the same, against such as fail or refuse to pay the taxes assessed, are constitutionally valid as •* the law of the land," and as authorizing " due process of law." Myers v. Park, 8 Heis., 559-562; Murray v. Land and Improvement Co., 18 How., 59 U. S., 272, 282, 15 L. ed., 372, 376. McMillen v. Ander- 2IO Tennessee Tax Digest. son, 95 U. S., 37, 24 L. ed., 335; Davidson v. New Orleans, 96 U. S., 97, 24 L. ed., 616; Springer v. United States, 102 U. S., 586, 26 L. ed., 253; Kelly v. Pittsburgh, 104 U. S., 78, 26 L. ed., 658; Hagar v. Recla- mation District, 111 U. S., 701, 28 L. ed., 569; Railroad v. Kentucky, 115 U. S., 321, 29 L. ed., 414. Sec. 49a. Notice of sales. — Ten days' notice of the time and place of said sale shall be given by advertisement put up in three public places in the county, one of which shall be in the district where the taxpayer resides, and one of which shall be at the courthouse door. Sec. 49b. Officers to have property at sale; costs, commis- sions, and expenses of removal. — The officers shall in all cases have the personal property present when sold, and shall be al- lowed to retain, in addition to the taxes, all commissions, costs, and necessary expenses of removing and keeping the property distrained. Sec. 49c. Garnishment lies, when; proceedings on; judg- ment. — In cases where the officer cannot find personal prop- erty sufficient to satisfy said taxes, he is authorized to proceed by garnishment process, returnable before some justice of the peace on any day succeeding the service. The proceedings on the return of such garnishment process shall be as provided in cases of garnishment on execution, and on judgment, if upon the answer of the garnishee the judgment shall go against him, and said judgment shall be in the name of said officer. Sec. 49d. Fees on collections by distress or distress and sale. — On all taxes collected by the trustee the trustee or his depu- ties or constables, whichever performed the services, shall have the same fees where they collect by distress or distress and sale as are allowed for collecting executions. See sec. 69g, post, p. 240. Sec. 49e. Trustee may appoint deputies; list of delinquent taxpayers. — After the taxes become delinquent, the county trustee shall have power to appoint such deputies as may bQ i General Assessment Law. 211 necessary for the collection of the delinquent taxes, and in such cases he shall furnish the deputy with a list of the delin- quent taxpayers, with the description of the property assessed against each and the amount of taxes due from each. Void levy for taxes under a void paper from trustee enjoined. — A levy for taxes made by a deputy collector, not by virtue of a certified list from the trustee, as required by statute, but under a mere memo- randum from the trustee of the amount of taxes due, which is not a writ, execution, warrant, or other instrument known to the law, and does not purport to be such, and does not command anything to be done, is void, and an injunction will lie to restrain collection of State and county taxes under such void paper. Alexander v. Henderson, 21 Pickle, 431. This decision was based upon Acts 1895, ch. 120, sec. 12, which requires a certified delinquent list; while the existing law does not require a certified list, but merely a delinquent list, with all the other requisites required by the former law. But this difference in the statutes is thought to be immaterial upon the point of the above decision, and that the same formalities are required under the existing statute, as was required under the former statute upon which said decision was based. — Ed. Sec. 49f. Record of levies and proceedings. — The trustee shall keep a record of all levies made by himself or deputies and of proceedings under such levies. Sec. 49g. Fees of deputies in collection of delinquent taxes, and not to be accounted for by trustee. — The deputy trustee [trustees] appointed to collect delinquent taxes shall be al- lowed all the fees and costs earned by each and accruing on such lists, and the trustee shall not be required to account for such fees and costs as a part of the emoluments of his office under the existing laws. See next section; sec. 69g, post, p. 240. Sec. 49h. Delinquent polls to be issued, when ; commissions, fees, and costs of constables or deputies. — The trustee shall make out a list of all delinquent poll taxes by districts, and shall place the same in the hands of the constables in each dis- trict or a deputy trustee not later than the tenth day oi next after the year for which said poll taxes were levied, and 212 Tennessee Tax Digest. for colkcting such taxes the officer shall be entitled to collect as compensation a commission of per cent, on the amount of poll tax, in addition to the commission now allowed by law for collecting executions, which commissions shall be paid by the delinquent. If it is necessary to collect such delinquent poll taxes and the aforesaid per cent, commission afore- said by distress and sale or garnishment as hereinbefore pro- vided in collecting tax assessed against owners of real estate, the officer shall have the same fees as now allowed for like services. See last section; sec. 69g, post, p. 240. Omissions in statute noted and commented on.^ — The month when this delinquent poll tax list shall be issued is left blank. All poll taxes are delinquent on the first of March, and the list is to be issued after the delinquency; and the statute says they shall be issued "not later than the tenth day of ," which might be reasonably construed to mean March, as such expression indicates an early issuance of the list. If this is not the meaning of the statute, then there seems to be no way to determine what month is intended, and in such case the list could not be issued at all. In the previous act contained in Acts 1903, ch. 258, sec. 50, the word " March " occurs where the blank is left in this statute. The omission may well be supplied for the reasons above stated. But there is no way of supplying the blanks as to the extra commissions in addition to the commissions allowed on execu- tions, except by reference to the said previous act, and this is hardly permissible where there is nothing in the act itself by which the omis- sion can be supplied. — Ed. Sec. 49i. Poll tax list to be returned, when; payment after- wards. — All lists shall be returned by such officer on or be- fore the first day of May, and after said date poll taxes may be paid by adding thereto the same rate of interest and penalties as are added to delinquent real estate taxes. See sec. 69f, post, p. 239. Sec. 49j. Monthly reports and payments by constables or deputies as to collection of poll taxes ; fees retained. — The con- stable or deputy trustee shall have [make] monthly reports to the county trustee of polls collected, and pay over to said trus- General Assessment Law. 213 tee all poll taxes collected during the month after retaining the fees to which he is entitled by law. Sec. 49k. Final settlements and payments ; credits for what. — On the first day of May, the constable or deputy trustee shall make a final settlement of the polls in his hands for collection, and in the settlement shall be charged with the aggregate amount of polls in his hands for collection and be credited with the amount collected and accounted for, with errors, dou- ble and illegal assessments, and with such insolvent or other polls as such officer shall show could not have been collected by law after diligent efTort on his part. Sec. 491. Balance due on settlements may be recovered from constables or deputies, how. — Any balance found due on such settlements may be recovered of the constable or deputy trus- tee and his sureties on his bond, by suit or motion, on five days* notice, in any court of record, instituted by the county trustee or any revenue agent or district attorney of the State. Sec. 49m. Bond of constable or deputy. — The constable or deputy, before entering upon the collection of the polls, shall enter into a bond, payable to the State of Tennessee, in a sum sufficient to cover the aggregate amount of polls to be col- lected, with two or more solvent sureties, and conditioned to faithfully perform the duties herein and discharge every bal- ance found against him upon settlement with the county trus- tee, which said bond shall be approved by the trustee and filed for preservation in the office of the clerk of the county court. Sec. 49n. Trustee is entitled to no fees except commissions. — Nothing in this act shall be so construed as to allow the trus- tee any fee for making out the list of delinquent taxes for ei- ther real estate or polls for the deputy trustee or constable, nor shall the trustee receive any fee for any services required to be performed by him under the provisions of this act, except the commissions herein allowed. See sec. 69g, post, p. 240. 214 Tennessee Tax Digest. Trustees entitled to no fee for selling lands for taxes. — The county trustee is not entitled to a fee of fifty cents, nor to any fee, for the sale of each tract of land sold for taxes due in 1879 and 1880, although the statute requiring the report of delinquent lands prescribed a form of report deemed sufficient which contained the statement or item: " Trustee's fee, fifty cents." But this statute does not purport to pro- vide that such fee shall be allowed to the trustee. So it is not espe- cially provided by law that the trustee is entitled to such fee. State, ex rel., v. Nolan, 8 Lea, 399, 400, 401. See Code, sec. 6352. Sec. 49o. Deputy or constable is entitled to no fee, except where he collects the taxes himself. — Nor shall any deputy or constable be entitled to any fee for any service rendered in re- lation to any delinquent tax in his hands for collection unless he collects taxes in person from the delinquent; and after de- linquent taxes on property or polls have been returned by the deputy trustee or constable uncollected, said delinquent may thereafter pay the same to the trustee by paying the interest and penalty of one per cent, from the date of its accrual. See sec. 69g, post, p. 240. Sec. 49p. Back poll taxes are payable without costs, when; refusal of ofEcial is high misdemeanor; fine. — Any trustee, back tax collector, or other officer having charge of the collec- tion of back poll taxes who refuses to give a receipt where the tax, interest, and penalty for the preceding or other year [or years] is tendered by any party volunteering to pay his poll taxes is hereby guilty of a high misdemeanor, and upon convic- tion shall be fined not less than $50 or [nor] more than $100 at the discretion of the court. See sec. 69g, post, p. 240, SALE OF LAND FOR TAXES. (Sections 50-66b.) Sec. 50. Real estate to be advertised for sale ; form of notice ; four weekly insertions. — After the first day of May of each year the trustee shall advertise all real estate upon which taxes remain due and unpaid, or which is liable for sale for other General Assessment Law. 215 taxes, at the door of the courthouse of the county on the first Monday in June following, and said advertisement shall be in the form following, to wit : DELINQUENT TAXPAYERS, TAKE NOTICE. On the first Monday in June next at the courthouse door [here name county and town] I will oflfer for public sale all the real estate belonging to delinquent taxpayers for the year . The following is a list of such delinquents, the district in which the property is situated, and the number of acres m each tract, as follows : [here insert list of delinquents, etc.] ; and if said sale is not completed on the said first Monday in June, the same will continue from day to day until completed. (Signed) , Trustee. Such notice shall be inserted once a week for three weeks in some newspaper published in the county; and if none be pub- lished, then by posting said notice at the courthouse door for three weeks previous to said sale, the fee therefor to be paid by the county. Advertisement of tax sales to be shown. — The advertisement of tax sales must be shown to have been made as required by law, espe- cially where the sales are made in summary proceedings under stat- ute. Rule V. Parker, Cooke, 365; Bloomstein v. Brien, 3 Tenn. Chy., 64. Sec. 51. Sale of land of delinquents, when. — On the first Monday in June, if the taxes remain unpaid, the trustee shall proceed to sell land of each delinquent taxpayer to pay the amount of taxes due by him, and all costs, interests, penalties, and charges thereon, to the highest bidder for cash, and the sale shall be continued from day to day between the hours of 10 o'clock a.m. and 4 o'clock p.m. each day until all is sold, and the trustee shall enter on the tax books at the place for enter- ing date of payment the words: "Sold to [name], [date]." Tax deed must show tax sale at time and place required by law. — A tax deed showing that the land was sold on a day different from that designated by law is void. Conrad v. Darden, 4 Yer., 307. The deed must show that the land was sold at the time and place required 2i6 Tennessee Tax Digest. by law, and the recitation of a sale " on the day of , 18 — ," is not sufficient. Thompson v. Lawrence, 2 Bax., 421. Sec. 52. Parties in possession become tenants of purchasers, but not liable for rents, when. — Any one in possession of land sold for taxes under the provisions of this act shall become the tenant of the purchaser at will from and after the first day of January following the date of sale ; provided, however, in cases where the tenant has, prior to the date of sale, paid his rent to a time beyond said first of January, or has, prior to date of sale, given his written obligation covering a period of time be3^ond said first day of January, and said written obligation is legally owned or held by third parties, then the tendency [ten- ancy] defined by this act shall be [continue] without any right to collect rent on the part of the purchaser until the expiration of the time paid for or covered by such written obligation. See sec. 54d, post, p. 219; sec. 57a, post, p. 222; sec. 65c, post, p. 232. Sec. 53. Land struck off to State treasurer, when. — No tract, lot, or parcel of land shall be sold for less amount than the amount of taxes, interest, penalties, and costs and charges due thereon ; and if no person will bid the amount of such taxes, interests, penalties, costs, and charges, the trustee shall strike the same off to the treasurer of the State, to be held in trust for the use of the State, county, and municipality, said sale to be for the amount of said taxes, interests, penalties, costs, and charges thereon due to the State, county, and municipality. Sec. 53a. Certified list of lands so struck off to State treas- urer in book form showing what; a record of ofHce of circuit court clerk. — The trustee shall, on or before the first Monday in August thereafter, file in -the ofhce of the clerk of the circuit court in his county a certified list of the lands so struck oflf by him to the State treasurer, specifying the days of the sale, the amount of the respective taxes for which said sale was made, and each item of costs thereof, which list shall be made in book form and kept by said clerk as a part of the official records of his office. Gexeral Assessment Law. 217 Sec. 53b. Certified list operates as conveyance to State treas- urer. — The list of land so filed with said clerk shall be in lieu of conveyance, and shall vest title in said treasurer for the use aforesaid to all the lands embraced in such list as a convey- ance to said treasurer v^ould do. Sec. 53c. Form of certificate to list. — Said list may be certi- fied substantially as follov^s : I,. , trustee of county, Tennessee, do hereby cer- tify that the foregoing is a correct list of all real estate sold by me to the State treasurer for delinquent taxes of the year . This day of , 190—. (Signed) , Trustee. 1. Tax title is invalidated by noncertification of list of lands struck off to State treasurer. — Failure of county trustee to certify Hst of lands struck off to the State treasurer at tax sale tiled with the circuit court clerk invahdates the title of purchaser from the State treasurer. It is essential that the list be certified. It is not enough that it is substantially correct. State v. Dugan, Tax Title Cases, 21 Pickle, 245; Condon v. Galbraith, 22 Pickle, 14, 15-20. 2. Certification of list does not relate back. — County trustee's cer- lilication of list of lands struck off to the State treasurer made after the date prescribed does not relate back to the date of its filing. Con- don V. Galbraith, 22 Pickle, 14, 20-27. 3. Confirmation of tax sale without certified list is void, when. — This certified list constitutes a jurisdictional fact, the nonexistence of which invalidates and renders void the de"cree of the circuit court con- firming tax sale and awarding writ of possession. Condon v. Gal- braith, 22 Pickle, 14, 20-27. 4. Statute is different as to list of lands sold to individuals. — But see section 55, post, p. 219, as to. sales to individuals, requiring the cer- tified list to be filed, but providing that a failure to make return or record of said list, or a defective list, shall not affect the title. But this provision is confined to sales made to individuals, and will not be extended to the sales made to the State treasurer. See Tax Title Cases, 21 Pickle, 245, 250, 251. 5. Assessment and list of sales must show item.s and amounts in dollars and cents; mere figures without more are insufficient, and render sale void. — The absence of the dollar mark or anything to in- dicate what is meant by the figures in the assessment of property for 2i8 Tennessee Tax Digest. taxation or in the trustee's certified list of sales of lands for taxes furnished to the clerk of the circuit court renders such tax sales of land void. Such list should show in dollars and cents the amount of taxes, as well as each item of costs and penalties. Mere figures en- tered between perpendicular lines without more are insufificient. Hamilton v. Gaslight Co., 7 Gates, 150, citing and construing Acts 1899, ch. 435, sec. 55, and citing and approving Randolph v. Metcalf, 6 Gold., 400, 407; Dunn v. Dunn, 15 Pickle, 612; Barnes v. Brown, 1 Tenn. Ghy. App., 740; Anderson v. Post (Tenn. Ghy. App.), 38 S. W., 283. Sec. 53d. Certified copy of list for comptroller. — A copy of the list so filed with the clerk shall be sent tO' the comptroller by the trustee, the correctness of which list shall be certified to by the said circuit court clerk. Sec. 54. Lands so struck off to State treasurer shall not be sold again, except. — Land struck off to the treasurer of the State for taxes, interests, and penalties shall not be sold again for taxes subsequently accruing until the same shall have been redeemed or purchased as provided in sections 62 and 63 of this act. Sec. 54a. Subsequent taxes to be reported to circuit court clerk. — The trustee shall report such subsequently accruing taxes, interests, penalties, and costs to the circuit court clerk, who shall enter the amount thus reported as a charge against such land. Sec. 54b. Land so sold to be assessed to owner of redemp- tion.— After the sale, the land shall be assessed to the party owning the right of redemption therein. Sec. 54c. Rents of lands so struck off to State treasurer to be credited on taxes. — If any property for taxes sold and struck otlf to the State treasurer can be rented for a sum sufficient to pay the taxes, costs, and penalties and subsequently accruing taxes within one year from taking possession after deducting from such rents a commission of ten per cent., which may be allowed to any agent for services in renting such property, then General Assessment Law. 219 the clerk may take possession of said land and have the same rented out. The net rent each month shall be credited on the amount necessary to redeem said land. Sec. 54d. Writs of possession to gain possession of such land. — The clerk is hereby authorized to issue such writ of pos- session as may be ordered by the court to gain possession of said property at any time it may be necessary to remove any person who may deny his rights to possession or who refuses as tenant to pay rents agreed upon. As to writ of possession, see sec. 57a, post, p. 222; sec. 57b, post, p. 222; sec. 62g, post, p. 227; sec. 64f, post, p. 230; sees. 65-65b, post, p. 232. As to protection of tenant, see sec. 52, ante,' p. 216; sec. 57a, post, p. 222; sec. 65c, post, p. 232. Sec. 55. List of lands sold to individuals to be filed with cir- cuit court clerk ; defects do not affect titles. — The trustee shall also make a list of the lands sold to individuals, in book form, in the same manner and at the same time as required for lands struck off to the State treasurer, which he shall file with the clerk of the circuit court of his county, which shall be kept by the clerk as part of the official records of his office ; but a fail- ure to make return or record of said list or a defecting [defect- ive] list shall not affect the title. See notes under sec. 53c, ante, p. 217. Sec. 55a. List operates to vest title ; purchaser is entitled to certificate. — The list of lands so filed shall operate to vest title in said purchasers, respectively, to the lands purchased in fee smiple, and any purchaser at tax sale shall be entitled to re- ceive, if he demands the same, a certificate showing his pur- chase, signed by said trustee. Sec. 55b. Form of certificate to list of lands sold to individ- uals. — The trustee shall append to said list of lands sold to in- dividuals a certificate substantially as follows : 220 Tennessee Tax Digest. I, — — , trustee of county, Tennessee, do hereby cer- tify that the foregoing is a correct list of all real estate sold by me to individuals for delinquent taxes of the year . This day of . (Signed) , Trustee. Sec. 56. Redemption by whom, and by paying what, and within what time. — The lands [struck] off to the treasurer of the State and the lists of lands sold to individuals shall re- main in the office of the clerk of the circuit court, and the owner of the land or any person for him or any creditor of such owner may redeem the same within two years from said sale by paying said clerk,. regardless of the amount of said pur- chaser's bid at a said tax sale, the whole amount of the taxes for which the land was sold, with all the costs, interests, pen- alties, and charges consequent upon the sale, and damages or penalties at the following rate, viz. : Six per cent, per annum interest and a penalty of one per cent, for each month from date of sale, and also all State, county, and municipal tax^s that have accrued on such land since the sale, with interest thereon at the rate of six per cent, per annum and one per cent, per annum per month penalty from the first of March in each year following the year for which such taxes are as- sessed. See sec. 67b. Sec. 56a. Penalty and interest on subsequent taxes to be paid by the purchaser. — And this interest and penalty shall accrue on subsequent taxes in favor of individual purchasers at tax sales, who may, during the month of February or atter th^t time, pay subsequently accruing taxes. Sec. 56b. Clerk's compensation. — And as compensation for the clerk, he shall be entitled to a commission of five per cent, on the whole amount of the redemption money and a fee of fifty cents for issuing the redemption receipt, which amount shall be collected from the delinquent, which receipt shall in- clude all property redeemed by any person at one time. See sec. 62a, post, p. 225; sec. 64, post, p. 228; sec. 64g, post, p. 230. General Assessment Law. 221 Sec. 56c. Redemption within two years after disabilities are removed; improvements. — Saving to persons under disability, whose lands may be sold for taxes, a right to redeem the same, within two years after such disability shall have been removed, from the purchaser thereof, on the terms herein prescribed, on their paying the enhanced value of the land resulting from any permanent improvements on the land after the expiration of two years from the date of sale of the land for taxes ; provided, the value of such improvements shall not exceed the rental value of the land. Error in number of next section is corrected. — The section that should have been numbered 57 in this act was erroneously numbered 58, thereby making two sections numbered 58; and to avoid confusion, the section so erroneously numbered 58 will be given its correct num- ber of 57 in this work. — Ed. Sec. 57. Decree of circuit court vesting title in purchasers. — On any day of any term of the circuit court after the time when such lists of lands sold for taxes and struck off to the treasurer of the State or sold to individuals are filed with the clerk of said court, it shall be the duty of the court, upon mo- tion of the trustee or any revenue agent of the State or any purchaser, to enter a decree in form about as follows : THE STATE OF TENNESSEE. For uses, etc. V. Delinquent property — real, personal, and mixed — assessed for taxes due the State, county, and municipalities in the county . It appearing to the satisfaction of the court that the trustee for county, in the State of Tennessee, has filed lists of sales of property in said county delinquent for taxes due there- on, for the year and years prior [thereto], to the State, county, and municipalities in said county. It further appearing to the court that the treasurer for use of the State, etc., and various individuals and corporations have become purchasers of specific portions of the property as described and set out in said list. It is, therefore, decreed by the court 222 Tennessee Tax Digest. that such sales be confirmed and that all right, title, interest, and estate of any kind and character pertaining to said prop- erty or any parcel or portion thereof is hereby vested in the respective purchasers as shown by said lists, subject alone, hovv^ever, to the right of redemption given by the terms of the act under which such sales were made. Sec. 57a. Writs of possession awarded to purchasers. — The clerk of this court will, upon the payment of the legal fees therefor, issue to any purchasers named in said lists a writ of possession to put such purchaser in possession of the property purchased ; provided, that said writ shall not issue before the expiration of two years from the date of sale, and that such writs shall be subject to the rights of tenants as heretofore defined in this act. As to- writs of possession, see sec. 54d, ante, p. 219; sec. 57b, below; sec. 62g, post, p. 227; sec. 64f, post, p. 230; sees. 65-65b, post, p. 232. As to rights of tenants, and. their protection, see sec. 52, ante, p. 216; sec. 54d, ante, p. 219; sec. 65c, post, p. 232. Sec. 57b. Decrees on former sales; writ of possession. — It shall also be the duty of the circuit court on any day of any term hereafter, on the motion of any purchaser named in the lists of lands, sold for taxes under the provisions of chapter 1 of the acts of the fiftieth general assembly, April 6, 1897, or subsequent acts, on file and constituting a part of the record of such court, or upon the motion of any trustee or revenue agent, to enter a decree in about the form hereinabove set out, confirming the sales in said lists, except that the writs of pos- session shall be decreed to issue on compliance with the provi- sions of section 65 of this act. As to writ of possession, see sec. 54d, ante, p. 219; sec. 57a, next above; sec. 62g, post, p. 227; sec. 64f, post, p. 230; sees. 65-65b, post, p. 232. Sec. 57c. But this writ of possession shall not be issued ex- cept under order of court. — No writ of possession shall be is- sued by the clerk under this act unless the court shall have first ordered a writ of possession. General Assessment Law. 223 Sec. 57d. Provision applicable to all sales made and to be made. — This provision shall apply to all sales heretofore made and hereafter to be made to individuals and to the treasurer of the State or to any company or corporation. Sec. 57e. Authority vested in circuit courts for purposes of this act. — The respective circuit courts of this State are vested with the authority to render judgments, decrees, and order writs of possession for the purposes declared in this act. Sec. 57f. Comptroller's authority and duty as to land struck off to State treasurer for taxes ; approved by governor and at- torney-general. — The comptroller is hereby authorized to take the necessary steps to put the State in possession of said prop- erty and to dispose of the same to the best advantage to the State, either by compromise or by sale, on approval of tne governor and attorney-general. Special agent for a given county cannot be appointed by comp- troller. — The comptroller is not authorized to appoint and commis- sion any one as ** special agent " for a given county, to look after and collect delinquent taxes, and the pending suits in such county for the collection of delinquent taxes; for that would be the creation of an office. Opinion of Attorney-General Gates. Sec. 58. Purchaser at second sale acquires title superior to that of purchaser at first tax sale. — If any individual purchaser shall allow any land purchased by him to be again sold for taxes and purchased by him to be again sold for taxes and purchased by another individual purchaser, then such subse- quent individual purchaser shall acquire the superior title, and the title of the first purchaser shall become null and void as against the title and claim of such subsequent purchaser. The words after the first " and " in the fourth line as herein printed should all be stricken out as a repetition, though the words are printed as they appear in the engrossed act and in the published Acts. — Ed. Sec. 59. Resale upon purchaser's failure to pay; struck off to State treasurer, when. — If the purchaser of land at a tax 224 Tennessee Tax Digest. sale shall not immediately pay the amount of his bid, the trus- tee shall offer the land again ; and if some person will not then bid the amount of taxes, interests, costs, and charges upon it, it shall be struck oif to the State treasurer as in other cases. Sec. 60. Excess of purchase money over taxes and costs to be paid to clerk for owner; liability for. — If any land be sold from [for] more than the amount of taxes due thereon and all costs, interests, and charges, the excess shall be paid over by said trustee to the clerk of the circuit court at the same time that he shall file with said clerk the list of land struck oif to the State treasurer and to individuals, taking his receipt for the same, and said excess to remain in the hands of said cir- cuit court clerk until the land is redeemed or until the pjiiod of redemption shall have expired ; and if said land is redeemed, said excess shall be by the clerk paid to the bidder or pur- chaser, his representatives, or assigns; and if the land be not redeemed, then the same shall be paid by said clerk to the per- son who owned the land at the time of the tax sale, his heirs, or assigns ; and the said clerk and his bondsmen, as the case may be, shall, respectively, be liable for the safe-keeping and disposition of said excess in accordance with the provisions of this act. Sec. 61. Record of redemption. — On the payment of the re- demption money the clerk shall, on the record of the list of lands struck off to the State treasurer and the list of lands to individuals, respectively, write opposite the tract of land the word " Redeemed," and with the date of payment and redemp- tion, the person redeeming, and the amount paid, so as to show the amount paid on account of taxes accrued since the sale; and the said clerk shall be liable on his official bond for any and all moneys collected under this act, and shall pay over the amount received by him on redemption to the persons entitled to receive the same. Sec. 62. Lands struck off to State treasurer may be sold at private sale. — At any time after the sale of land for taxes, the General Asskssment Law. 225 lands or any part thereof struck off to the treasurer and re- ported to the circuit court as herein provided may be sold at private sale by said clerk to any one desiring to purchase the same for not less than the taxes, interests, penalties, and cost due thereon to the date of such sale, and such purchasers shall take the same, with all the rights and subject to all the re- demption rights, the same as if he had become purchaser at trustee's sale. Sec. 62a. Conveyance by clerk upon payment of what, when; clerk's fee. — After the time for the redemption of any tract of land sold for taxes shall have expired, any person shall be en- titled to receive from the clerk of the circtiit court a convey- ance of the title vested in the treasurer of the State for the uses aforesaid upon the payment to said clerk of the whole amount of taxes, interest, and penalties for which the land was sold, and all costs, interest, and charges consequent upon such sale, with interest at six per cent, per annum, and one per cent, per month penalty from date of sale upon the amount for which said land was sold, and also all State, county, and municipal taxes, interest, and penalties which shall have ac- crued on the land since the said sale, with interest thereon, to- gether with five per centum on the whole amount of the pur- chase money and fifty cents for making the deed for compen- sation for the clerk, which conveyance shall vest in him a good and indefeasible title to said land. As to redemption, sec sees. 56-56c, ante, pp. 220, 221; sec. 64g, post, p. 230. As to clerk's fee, see sec. 56b, ante, p. 220; sec. 64, post, p. 228; sec. 64g, post, p. 230. As to amount to l)e paid for land to obtain a deed, see sec. 64g, post, p. 230. Sec. 62b. Deed to be entered by county court clerk, and in- dorsement to be made thereon before registration ; clerk's fee. — Said conveyance shall be immediately presented to tiie .-.ounty court clerk, whose duty it shall be to enter the same 8 226 Tennessee Tax Digest. on a book, to be kept for the purpose, giving in such entry a complete description of the property, the name of the pur- chaser, date of the deed, and several items of cost and moneys paid thereon, for which he shall receive twenty-five cents as his compensation ; and at the same time the county court clerk shall indorse on such conveyance the words, " Entered in the county court clerk's office," and sign his name and the date thereof, and no such deed shall be recorded in the register's office until it has been so indorsed by the county court clerk. Sec. 62c. Form of deed. — The form of said deed shall be to the following effect : I, , clerk of the circuit court of county, State of Tennessee, in consideration of the sum of $ paid to me by , hereby convey to said the following described lands, situated in said county, to wit: [here describe the land] ; sold to the treasurer of the State for delinquent taxes on property assessed to , for the year , on the day of , A.D. . The time of redemption having expired, this con- veyance is made pursuant to the authority vested in me by law. " Witness my hand and seal of the county [said court] here- unto affixed, this day of , A.D. . , Clerk. See sec. 64a, post, p. 228. Sec. 62d. Deed is prima facie evidence of statements. — The deed made by the clerk as above provided shall be prima facie evidence of the facts stated in the deed. See sec. 64c, post, p. 229. Recitals are prima facie evidence only, and may be contradicted, when. — Recitals of tax deeds are only prima facie evidence of the facts recited subsequent to the judgment and order of the sale, and may be contradicted. Henderson v. Staritt, 4 Sneed, 470, 472; Quinby V. Coal & Transportation Co., 2 Heis., 604; Thompson v. Lawrence, 2 Bax., 421; Sampson v. Marr, 7 Bax., 492; Sheafer v. Mitchell, 1 Cates, 192. Sec. 62e. Seal is authentication for registration. — The said seal of the circuit court clerk shall be a sufficient authentica- General Assessment Law. 227 tion, and entitle the same to registration without any acknowl- edgment. See sec. 64b, post, p. 229. Sec. 62f. Clerk to sell land to highest bidder, when; pro- ceeds to be distributed, how. — If the clerk shall have knowl- edge or reason to believe that more than one person desires a deed to any tract of land, he shall notify all such persons that he will, on a certain day, sell said land to the highest bidder ; and the excess so paid shall be distributed to the State, county, and municipality in the proportion that each may be interested in the land sold. Sec. 62g. Writ of possession to be issued, when. — A writ of possession shall be ordered by the circuit court (to which the tax sale has been certified) upon application of any purchaser under this section [sections 62-62g herein]. See sec. 54d, ante, p. 219; sec. 57a, ante, p. 222; sec. 64f, post, p. 230; sees. 65-65b, post, p. 232. Sec. 63. Clerk to make deed in lieu of back tax attorney's certificate under Acts of 1895. — Any person who has purchased any real estate at a sale held by a back tax attorney, under the provisions of chapter 120, Acts of the general assembly of 1895, and who has received from said back tax attorney a certificate of purchase, as provided in said act, and from whom said real estate has not been redeemed within the time required by law, may apply to the circuit court clerk of the county in which said real estate was sold for a deed; and if it shall be made to appear to the satisfaction of the said clerk that said real estate has not been redeemed from the party holding the cer- tificate of purchase, it shall be the duty of said clerk to issue to said purchaser a deed in the same manner as provided in section 64 of this act. Sec. 63a. Land struck off to State treasurer to be resold by circuit court clerk, when, and without redemption ; notice. — 228 Tennessee Tax Digest. The circuit court clerk shall at any time, not later than six months after the right of redemption shall have expired on any property that has been sold for taxes under this act by the trustee and struck off to the treasurer of the State and not otherwise disposed of, advertise and resell all such property under the same rule and same notice that the trustee sold un- der in the beginning, except that he shall state in his notice that the sales will be made in bar of the equity of redemption. Sec. 64. Deed to purchaser to be made by clerk of circuit court after time for redemption has expired ; clerk's fee. — After the time for redemption of any tract of land sold for taxes to individuals shall have expired, any purchaser shall be entitled to receive from the clerk of the circuit court a conveyance ot the property so purchased, upon payment to the clerk of the sum of fifty cents, which shall be the clerk's compensation for making and delivering said conveyance. See sec. 56b, ante, p. 220; sec. 62a, ante, p. 225; sec. 64g, post, p. 230. Correction of misprint. — The word " payment " in the sixth line of this section as here printed was misprinted " conveyance " in the published Acts. It is here printed as it is in the engrossed act. — Ed. Sec. 64a. Form of deed. — The form of said deed shall be, in efifect, as follows : State of Tennessee, county of , ss. : Be it known that , the county trustee of said county of , did, on the day of , A.D. , according to law, sell the following land, situated in said county, assessed to , to wit : [here describe the land], for the taxes assessed thereon for the year [if sold for other taxes, it shall be so stated], when became the best bidder therefor and the purchaser thereof at the sum of $ and cents ; and the time for redetnption having expired, I, , clerk of the cir- cuit court of said county, by virtue of the authority vested in me by law, hereby convey said land to . Witness my hand and seal of said court hereunto affixed, this day of . ^, Clerk. See sec. 62c, ante, p. 226. General Assessment Law. 329 Sec. 64b. Seal authenticates deed for registration. — Said sale [seal] of the circuit court clerk shall be sufficient authentica- tion and entitle the same to registration without acknowledg- ment. See sec. 62e, ante, p. 226. Sec. 64c. Deed is an assurance of perfect title, not to be in- validated, except for what. — Said conveyance, as well as the conveyance provided for in section 62 [sections 62-62g herem], shall be an assurance of perfect title to the purchaser of said land, and no such conveyance shall be invalidated in any court except by proof that the land was not liable to sale for taxes or that the taxes for which the land was sold have been paid before said sale ; and if any part of the taxes for which said land was sold is illegal or not charged to it, but a part is chargeable, that shall not affect the sale, not [nor] invalidate the conveyance thereunder, unless it appears that before the sale the amount legally chargeable on the land was paid or ten- dered to the county trustee, and no other objection either in form or substance to the sale or the title thereunder shall avail in any controversy involving them. See sec. 62d, ante, p. 226; sec. 75, and notes, post, pp. 247, 248. Sec. 64d. Statute of limitation against suit to invalidate tax title; disabilities provided for. — No suit shall be commenced in any court of the State to invalidate any tax title to land after three years from the time said land was sold for taxes, except in case of persons under disability, who shall have one year in which to bring suit after such disability is removed. Sec. 64e. Payment or tender of amount of bid and subse- quent taxes, interest and charges before suit. — No suit shall be commenced in any court of the State to invalidate any tax title to land until the party suing shall have paid or tendered to the clerk of the court where the suit is brought the amount of the bid and all taxes subsequently accrued, with interest and charges as herein provided. 230 Tennessee Tax Digest. Sec. 64f. Writ of possession to purchaser. — A writ of pos- session shall, upon application of the purchaser, included in this section [sections 64-64J herein], be ordered by the court to which the tax sale has been certified. See sec. 54d, ante, p. 219; sec. 57a, ante, p. 222; sec. 62g, ante, p. 227. Sec. 64g. Notice by clerk before making deed; cost thereof; clerk's fee; what to be paid by purchaser. — The circuit court clerk shall not make deed for land struck off to the treasurer or sold to individuals until the circuit court clerk shall is- sue a notice as hereafter provided, and have served on the person to whom said real estate was assessed, if to be found; if not, to his agent or representative or attorne}-; and if no such agent or representative or attorney can be found, the clerk shall make publication for four consecutive weeks in any newspaper published in the county where the land is situated, or in case there is no paper in said county, he shall make publication in the nearest county paper for the person or per- sons who own said lands or to whom same is listed, specify- ing that unless said property owner or his agent or attorney or representative appear on or before a certain day at least sixty days from the service of said notice or from the last publication and redeem said land or lands by paying all ac- crued taxes — State, county, municipal, etc. — together with in- terest, penalty, and costs accrued to date .of redemption, that the sale of said lands to the purchaser thereof shall become absolute, and the circuit clerk shall proceed forthwith to ex- ecute a deed to said lands to the purchaser aforesaid, who will pay to said clerk the whole amount of taxes, interest, and penalties for which the land was sold, and all the costs, in- terests, and charges consequent upon the sale, with interest at six per cent, per annum and one per cent, per month pen- alty from date of sale upon the amount for which said land was sold, and also all State, county, and municipal taxes, in- terest, and penalties which have accrued on the land since the said sale, with interest thereon, together with five per centum General Assessment Law. 231 on the whole amount of the purchase money, together with the costs of the notice or publication heretofore provided for and a fee of $1 to the clerk for making the deed. As lo clerk's compensation, see sec. 56b, ante, p. 220; sec. 62a, ante, p. 225; sec. 64, ante, p, 228. As to amount to be paid to obtain a deed, see sec. 62a, ante, p. 225. As to redemption, see sees. 56-56c, ante, pp. 220, 221; sec. 62a, ante, p. 225. Sec. 64h. Form of notice or publication. — FORM OF NOTICE. To : As the owner [or as the agent or attorney of the owner, as the case may be] of acres of land situated in the district of county, Tennessee, and bounded on the north by ; on the east by ; and on the south by ; on the west by [or if town lots or city property, describe by usual method of describing such property], you are hereby notified that unless you appear at my ofiBce in the courthouse in the town of , Tennessee, on or before the day of , 190 — [giving sixty days' notice], and pay the sum of $ , State, county, and all other taxes assessed against said lands, together with all interest and costs incurred, including this notice of publication as now provided by law, your right to redeem same shall be forever barred, and deed to the same will be at once executed by me to , the purchaser of said lands. Witness my hand at office on this day of 190 — . , Circuit Court Clerk. Sec. 64i. Kotice may be served by whom. — The above no- tice may be served by any county or district officer authorized to serve process. Sec. 64j. Form of public notice substantially complied with; one number; expense prorated. — The form of public notice heretofore provided for shall be sufficient, if a substantial com- pliance with the above notice ; and any number of property owners may be embraced in one publication, the expenses for the same to be prorated among them. 232 Tennessee Tax Digest. Sec. 65. Writ of possession to purchaser to be issued upon order of court, when. — Upon the request of any person who has or may become the purchaser of any property which has been sold for taxes due thereon under the provisions of chap- ter 1 of the fiftieth general assembly, passed April 6, 1897, and any subsequent acts, or to whom a deed has been executed under the prov.isions of said acts, the clerk shall, upon the or- der of the court and upon payment of the legal fees thereof, issue to such purchaser a writ of possession directing the sher- iff to put such person in possession of the property so pur- chased or described in such deed. See sec. 54d, ante, p. 219; sec. 57a, ante, p. 222; sec. 57b, ante, p. 222; sec. 62g, ante, p. 227; sec. 64f, ante, p. 230. Sec. 65a. Notice for application for writ of possession. — However, before such writ of possession is issued the pur- chaser shall make out a notice to the party in possession, giv- ing a description of the property and the fact of his purchase at tax sale, or under the provisions of said acts, the time of purchase, and stating that he will not earlier than thirty days thereafter apply to the judge of the circuit court for a writ of possession to put him in possession of said land. See sec. 54d, ante, p. 219; sec. 57a, ante, p. 222; sec. 62g, ante, p. 227; sec. 64f, ante, p. 230; sec. 65, next above; and sec. 65b, next below. Sec. 65b. Notice served by whom and in what manner. — Which notice shall be served by the sheriff or deputy sheriff or constable on the party or parties in possession ; and if no one is on the premises at the time the officer is there, it shall be sufficient service to leave a copy of said notice tacked to the house or other place where it can be easily seen. The officer's return shall be sufficient evidence to the clerk that such notice has been served. Sec. 65c. Tenant in possession may become tenant of pur- chaser without payment of rent, when. — if the party in pos- session is a tenant of the original owner and has paid his General Assessment Law. 233. rent in advance or has given his written obligation for the payment of such rents, and such written obligation is legally held or owned by third parties, such party shall have the right to become the tenant of the purchaser at tax sale without rent until the expiration of the time for which he has paid in ad- vance, or until the expiration of his written contract. See sec. 52, ante, p. 216; sec. 54d, ante, p. 219; sec. 57a, ante, .p. 222. Sec. 66. Clerk of circuit court to report and pay over monthly taxes collected on redemption and purchases; lia- bility and penalty for failure. — It shall be the duty of the clerk cA the circuit court on or before the tenth day of each month to report and pay over to the authorities — State, county, and municipal, respectively — entitled thereto all taxes collected by him on redemption and purchases as herein provided during the preceding month ; and if he fail to do so, he shall be lia- ble on his official bond for amount collected and tO' a pen- alty thereon of one per centum per day on the amounts so held or retained. Sec. 66a. Report shall show what. — Said report shall show the name assessed to ; the description of the property ; the amount paid in redemption ; and name of party redeeming or purchasing. Sec. 66b. Redemption or purchase to be entered on original tax books. — Whereupon the trustee and the collector of mu- nicipal taxes, if such taxes are collected separately, shall en- ter the fact of such redemption or purchase on the original tax duplicate opposite the original assessment, and the further tact of redemption by owner or creditor or sale by the clerk to a purchaser. GENERAL NOTES ON TAX SALES. 1. Jurisdictional facts and requisites of statutory tax sales in sum- mary proceedings. — What are the jurisdictional and other requisite facts in tax sales of land under statutory proceedings in rem that must appear in the record, or on the face of the proceedings,, as in ^34 Tennessee Tax Digest. other summary proceedings. Barry v. Rhea, 1 Ov., 345, 348; Bush V. Williams, Cooke, 360; Rule v. Parker, Cooke, 365; Johnson v. Mills, 3 Hay., 38; Campbell v. Mclver, 4 Hay., 60, 62; Weeks v. McCarrel, 4 Hay., 300; Michie v. Mullins, 5 Hay., 90; McCarrol v. Weeks, 5 Hay., 246, 254-256; Francis v. Washburn, 5 Hay., 294; Hamilton v. Burum, 3 Yen, 355, 359, 360; Conrad v. Darden, 4 Yer., 307, 308; Anderson v. Williams, 10 Yen, 234; Anderson v. Patton, 1 Hum., 369, 376, 377, 379; Tharp v. Hart, 2 Sneed, 569; Thacker, Ex parte, 3 Sneed, 344; Will- iams V. Harris, 4 Sneed, 332; Henderson v. Staritt, 4 Sneed, 470, 472, 473; Hightower v. Freedle, 5 Sneed, 312, 316; Glass v. White, 5 Sneed, 475, 478, 479; Randolph v. Metcalf, 6 Cold., 400; Quinby v. Coal & Transportation Co., 2 Heis., 596, 602-605; Thompson v. Lawrence, 2 Bax., 415; Douglass v. Mumford, 7 Bax., 415; Sampson v. Marr, 7 Bax., 486; Bloomstein v. Brien, 3 Tenn. Chy., 55, 63; Nashville v. Cowan, 10 Lea, 209, 212; State, for use, v. Woodruff, 11 Lea, 300; Thatcher v. Powell, 6 Wheat., 19 U. S., 119, 125, 127, 5 L. ed., 221-223. 2. Summary proceedings may be authorized by statute. — Statutes au- thorizing summary proceedings for collection of taxes are not in vio- lation of the law of the land. McCarrol v. Weeks, 5 Hay., 246, 253, 255, 256; Tipton v. Harris, Peck, 420 (distinguishing, and jury may be dispensed with in summary proceedings) ; Fields v. State, M. & Y., 174. See const, art. 1, sec. 8, and notes 7, 9, 11-14; const., art. 11, sec. 8, and notes. 3. Condemnation judgment must show the lands to be in the county, and from proper sources. — In the condemnation of lands to be sold for taxes there is no presumption that the lands lie in the county, but the fact that they do lie in the county must appear to the court from the proper source, and be shown in the judgment; and if such jurisdictional fact is recited as coming from a source not author- ized by law, the judgment will be void. Hamilton v. Burum, 3 Yer., 355, 359-362; Conrad v. Darden, 4 Yer., 307, 308; Anderson v. Will- iams, 10 Yen, 234; Anderson v. Patton, 1 Hum., 369, 375-379; Will- iams V. Harris, 4 Sneed, 332; Henderson v. Staritt, 4 Sneed, 470, 472, 473; Hightower v. Freedle, 5 Sneed, 316. The case of Campbell v. Mclver, 4 Hay., 60, is overruled by the foregoing cases, without cit- ing it, to the extent that it holds that the lands will be presumed to be in the county. — Ed. 4. Description in tax assessments and tax sales. — Insufficient description of less than the whole of a lot sold for taxes. Wands v. Brien, 13 Lea, 732. Insufficient description of land in the certificate of a tax sale. Quinby v. Coal & Transportation Co., 2 Heis., 596, 599, 600. Sufficient and insufficient description of land to give the circuit court power to condemn the same to be sold for taxes. Thacker, General Assessment Law. 235 Ex parte, 3 Sneed, 344; Quiiiby v. Coal & Transportation Co., 2 Heis., 603, 604. Tax sale is void, if the land is erroneously and defectively de- scribed. Gardner v. Brown, 1 Hum., 354; Rogers v. Park, 4 Hum., 483. Tax assessment and sale thereunder is void, where the description of the land in the assessment for taxation is insufficient to identify it. Morristown v. King, 11 Lea, 669; Polk v. Mitchell, 1 Pickle, 644. Defect of insufficient description of land in the assessment for tax- ation is not cured by a sufficient description in the report of sale. Morristown v. King, 11 Lea, 669; CoUigan v. Cooney, 23 Pickle, 220. Tax sale of one tract for taxes on it, and other tracts not contigu- ous thereto, assessed to same owner, is void. Morristown v. King, 11 Lea, 669; Polk v. Mitchell, 1 Pickle, 644. A chancery bill to sell land for taxes must describe each tract, and state the amount of taxes due on each tract; and a statement of the gross amount due on several tracts is insufficient. Polk v. Mitchell, 1 Pickle, 634, 643, 644. 5. Payment by any one discharges the land. — Payment of the taxes by any one, though not the owner, is good, and discharges the land from the tax burden, and the State cannot collect another tax from the real owner; and a sale of the land made thereafter for the taxes is void. Campbell v. Mclver, 4 Hay., 60, 62, 63; Weeks v. McCarrel, 4 Hay., 300; McCarrol v. Weeks, 5 Hay., 246, 255, 256. 6. Personalty must be exhausted. — There must be a return of no personal property before land can be subjected to payment of taxes. McCarrol v. Weeks, 5 Hay., 246, 252, 254, 255; Francis v. Washburn, 5 Hay., 296; Hamilton v. Burum, 3 Yer., 359, 360; Anderson v. Pat- ton, 1 Hum., 369, 375. See Nashville v. Cowan, 10 Lea, 212; Thatcher V. Powell, 6 Wheat, 19 U. S., 119, 127, 5 L. ed., 221-223, but especially 222. The personalty must be exhausted before resorting to the land for the taxes on it. Nashville v. Cowan, 10 Lea, 209, 212; Saunders v. Russell, 10 Lea, 299. To authorize a sale of land for taxes, it must be shown that there is no personal property distrainable. Puckett v. Owen, Peck, 167, 173. See Francis v. Washburn, 5 Hay., 294, 297, 299, 301; Hamilton v. Bu- rum, 3 Yer., 355, 359, 360, 361; Anderson v. Patton, 1 Hum., 369, 376; Nashville v. Cowan, 10 Lea, 209, 212; Thatcher v. Powell, 6 Wheat.. 19 U. S., 119, 125, 127, 5 L. ed., 221-223. 7. Caveat emptor. — Rule of caveat emptor applies to tax sales. Ross V. Mabry, 1 Lea, 226, 227; Strother v. Reilly, 21 Pickle, 56. 8. What title purchaser obtains. — Purchaser at tax sale takes the land subject to the lien for all taxes other than those for which the 236 Tennessee Tax Digest. land is sold. Nashville v. Cowan, 10 Lea, 209, 211, 213, 214; State v. Woodruff, 11 Lea, 304; Dunn v. Dunn, 15 Pickle, 611. Purchaser of land at tax sale takes only such interest as the tax- payer may have, without prejudice to the rights of other parties, such as remaindermen, Nashville v. Cowan, 10 Lea, 209, 213; Stovall v. Austin, 16 Lea, 709 (life estate is liable for taxes, and a sale for taxes gives the purchaser the life estate only) ; Ferguson v. Quinn, 13 Pickle, 48 (same as the last); Dunn v. Dunn, 15 Pickle, 607, 611; Hadley v. Hadley, 6 Cates, 167, 169 (lien on whole estate for taxes assessed to life tenant). TAX PAYMENT ON OWNER'S PORTION. (Sections 67-67b.) Sec. 67. Taxes may be paid by part owner on his portion of the property. — Any person claiming or owning an individual [undivided] interest or part in any property or any specific portion of any property assessed to another shall receive a re- ce"pt in full for his taxes on paying such portion of the taxes as he claims of the property or such proportion of the taxes as his quantity of the property bears to the whole quantity taxed. Sec. 67a. Prerequisites to issuance of receipt. — Before issu- ing his receipt in full on any specific portion of such property the trustee shall satisfy himself that the value placed on each portion is a correct relative valuation, either by agreement of the parties in interest or the certificate of the assessor that he has fixed the valuation of said portion. Sec. 67b. Application of this rule to all tax liens. — This rule shall apply to all taxes, interest, penalties, and cost [costs] that has [have] or may become a lien on any property in the hands of the trustee for collection or of the circuit court clerk for redemption from tax sale. Redemption by purchaser of remainder interest. — Under this rule and section 56, the purchaser of an undivided remainder interest in land may redeem, where the land assessed against the life tenant was sold for the taxes. Opinion of Assistant Attorney-General Faw. General Assessment Law. 237 REVENUE COLLECTOR. (Sections 68-74f.) Sec. 68. Trustee to report and pay over monthly. — On or before the tenth day in each month the trustee shall report to and make settlement for all taxes collected during the pre- ceding month with the comptroller of the State and with the judge or chairman of the county court and with the financial agent or treasurer of each municipality, and pay over to the same the amounts shown by the respective settlements to be due each. Sec. 68a. Trustee to rrake annual sworn statement, and pub- lish same ; publication fee to be paid by county. — The trustee shall make under oath a full and complete statement on the first Monday of September in each and every year of the con- dition of his office, setting out the aggregate amount of taxes collected, the amount so collected, giving State, county, and municipal taxes separately, and a full statement of the dis- bursements of the same and purposes for which disbursed and the amount on hand, and shall cause the same to be published in a newspaper published in said county ; and if no paper is published in said county, shall cause the same to be pub- Ished in the paper nearest to the county site, to be paid for by the county. Sec. 68b. Trustee is not entitled to commissions until re- port is published; recovery, where illegally paid. — Said trus- tee shall not be allowed any commission when he falls to make such publication, and in the event commissions are allowed when said publication is not made, any citizen and taxpayer of said county may bring suit against said trustee and his bondsmen and recover for the use of the State and county all commissions thus illegally paid or allowed. Sec. 68c. Trustee*s monthly settlements to be spread upon minutes ; credits to be specified. — Said monthly settlements so to be made to said judge or chairman and committee of court 238 Tennessee Tax Digest. shall be spread upon the minutes of the court and municipality, respectively, and shall specify every credit allowed said offi- cers for errors, removals, double taxation, and such other cred- its as are now allowed by law, except compensation to trustee. See sec. 69c, post, p. 239; sec. 70a, post, p. 240. Sec. 69. Trustee to present list of insolvents, delinquents, and double assessments annually at July session, verified by affidavit; requisites. — Annually, at the July term of the county court, the trustee shall present to said court a report of all in- solvent and delinquent taxpayers [and] double assessments in his county, with the amount due from each, which report shall be verified by the affidavit of the trustee that he has made in person or by deputy a legal demand for taxes of all delinquent taxpayers found in his county by going to their places of abode or business and searching for something to seize or sell for taxes ; that the taxpayers mentioned in the report have failed to pay their taxes and have no effects known to him which can be made to pay the same ; and 'that he had made diligent inquiry as to such delinquents as have not been found and cannot find them in his county, and they have no effects known to him which can be made to pay their taxes. 1. Forfeiture of credits for delinquencies on lands for failure to report within prescribed time. — Where the revenue collector was re- quired to report, to the circuit court by a particular time, for con- demnation and sale thereof, all lands upon which the taxes had not been paid, a failure to report within the time operated as a forfeiture of all credits for delinquencies on land. Chadwell v. State, 8 Heis., 340, 375. 2. Delay of tax books postpones time. — Where the delivery of the tax books to the trustee is delayed, the time of presenting the list of errors, etc., may be postponed for the corresponding time, but not longer. Chadwell v. State, 8 Heis., 340, 375-377; Akers v. Burch, 12 Heis., 608. Sec. 69a. Examination of report and credits allowed by the county court. — The county court shall proceed to examine said report, and shall allow the trustee a credit for such taxes Gejteral Assessment Law. 239 so reported insolvent or delinquent [and] double assessments, as it may be satisfied remain uncollected without the default of the trustee, and no more. Sec. 69b. List of credits to be certified by clerk of county court. — And a list of such allowances shall be made out and certified by the clerk of the county court and transmitted to the proper authorities of the State, county, and municipality, respectively. Sec. 69c. Report to be spread upon minutes. — Said report shall be spread upon the minutes of the county court and mu- nicipality, respectively. See sec. 68c, ante, p. 237; sec. 70a, post, p. 240. Sec. 69d. Credits claimed for insolvencies to be investigated by the county court. — The county court shall not allow the trustee a credit for the insolvent list that he reports merely because he presents it duly sworn to; but the court shall ex- amine carefully each credit claimed by the trustee and avail themselves of any information by witnesses to test the accu- racy of the report, and shall not allow the trustee credit for the taxes of any delinquent who may be ascertained to have anything in his possession or any right of action, by a sale of which the trustee would be able to make the taxes. Sec. 69e. List is chargeable against trustee unless credits are allowed; improper allowance of credits does not operate as an estoppel. — All the lists for which the court shall not al- low a credit shall be charged against the trustee, and not- withstanding that the county court may have allowed the trus- tee credits, such acts shall not operate as an estoppel in the event that it should afterwards appear that such credit was im- properly allowed. Sec. 69f. List of insolvent poll taxes to be retained, collec- tions made and reported. — The county trustee shall retain the poll taxes included in his list of insolvencies and for which 240 Tennessee Tax Digest. credit is allowed him as a charge against the taxpayers who have not paid the same, and at any time he may receive pay- ment thereof in person or through any deputy appointed by him, and he shall distrain and sell for such taxes where there is any probability of collecting the same in person or b}^ dep- uty appointed for that purpose any property of such poll tax- payers and sell the same for payment thereof, and all collec- tions of poll taxes so made shall be reported by him and ac- counted for in his next settlement made after the collection of the same. See sec. 49i, ante, p. 212. Sec. 69g. Fees for collection of poll taxes by distraint or sale. — For such collection, when made by distraint or sale, he shall be entitled to the fees heretofore allowed in such cases. This section shall not be construed as in any way affecting section 49 of this act. See sees. 49d, 49g, 49h, 49n, 49o, 49p, ante, pp. 210-214. Sec. 70. Annual statement in September for final settlement ; credits. — Each trustee shall, on or before the first Monday in September of each and every year, submit the statement here- inbefore provided for ; in case of all State revenue collected by him to the State comptroller; and in case of all county revenue collected by him to the 'county judge or chairman ; and for any municipality to the mayor or proper officer of said municipal- ity, for the purpose of making final settlement with said officer and accounting for all taxes, damages, penalties, fines, interest, and other revenue collected by him, and said trustee shall be allowed the credits herein provided for, and none other. Sec. 70a. Settlement to be spread upon minutes of county court. — It shall be the duty of the county judge or chairman to submit a copy of this settlement, showing all debits and credits, to the county court at the following term for inspec- tion, which shall be entered upon the minutes of the court. See sec. 68c, ante, p. 2^1 \ sec. 69c, ante, p. 239. General Assessment Law. 241 Sec. 71. Misdemeanor to violate this act; fine for school fund. — Any and all parties intrusted with the collection and disbursement of public funds or revenues violating the provi- sions of this act, upon whom no penalty has been heretofore imposed for so doing, shall be guilty of a misdemeanor, and upon conviction thereof shall forfeit and pay to the State not less than fifty dollars nor more than five hundred dollars, which shall be placed in the treasury for the benefit of the public school fund. Sec. 71a. An additional penalty for failure of collector to pay over taxes collected; forfeiture of office; attorney's fees. — And where each [such] trustee or other officer, whose duty it is to collect any taxes under the provisions of this act, fails to pay over and account for any and all taxes which they have col- lected to the proper officer, in addition to the above penalty, they shall be liable to a penalty of one per cent, per day on the same from the time the same should have been paid, which is in addition to attorney's fees hereinafter provided, none of which shall in any way be remitted after the matter is placed in the hands of the attorney, and they shall, in additional [ad- dition], forfeit their respective offices. Sec. 71b (1). Motion or suit against trustee in name of State. — A motion or suit lies in favor of the State, county, corpora- tion, or municipality against the trustee and his sureties on his official bonds for any moneys in his hands officially not paid over or accounted for according to law or for failure to collect. Sec. 71c (2). Motion or suit for State made or brought by whom. — The motion or suit in favor of the State may be brought in the name of the State, and shall be made or brought by the State's revenue agents or by the district attorney of the circuit or district where it is instituted upon the request of the State's revenue agent made upon direction of the comp- troller and treasurer. 242 Tennessee Tax Digest. Sec. 71d (3). Motion or suit for county in name of State made or brought by whom. — The motion or suit by the county may be brought in the name of the State, for the use of the county, by the district attorney or by counsel employed for that purpose. See sec. 71 j (9), post, p. 242. Sec. 71e (4). Motion or suit for city in name of State may be brought by whom. — A motion or suit in favor of the mu- nicipality may be brought in the name of the State for the use of such municipality by the mayor thereof or the city attor- ney. Sec. 71f (5). CounseFs compensation of fifteen per cent, to be added as part of judgment. — In each case the counsel mak- ing the motion and conducting the suit shall be allowed fifteen per cent, on the recovery as compensation as hereinafter fixed, to be added to and become a part of the judgment. Sec. 71g (6). Fees of State's counsel to be reported and ac- counted for. — The fees allowed to the counsel for the State shall be collected by the State's revenue agent and reported and accounted for as hereinafter provided. Sec. 71h (7). Fees of county's counsel to be collected and re- ported. — The fees allowed to the counsel or revenue agent for the county shall be collected by the counsel or revenue agent for the county and' reported to the county judge or chairman. Sec. 71i (8). Fees of city's counsel to be collected and re- ported. — The fees allowed to the city attorney shall be col- lected by said city attorney and reported to the mayor of the city or other chief official. Sec. 71 j (9). Taxpayer may make motion or bring suit in name of State, upon leave of court, when ; application for leave, and costs. — In case the judge or chairman of the county court should refuse to make the motion or bring the suit hereinbe- General Assessment Law. 243 before provided for after the written request of any taxpayer to do so, then any taxpayer of the county may make such mo- tion or bring suit in the name of the State for the use of. the county and employ counsel to conduct the cause; but before making such motion or bringing suit, he shall obtain leave of the judge of the court in which the motion is to be made or the suit brought to do so. He shall make such application in writing, stating fully the grounds therefor, of which appli- cation the judge or chairman of the county court shall have five days' written notice, stating time and place of applica- tion. The judge shall hear the application at chambers or in term time, and may adjudge the costs of the application against the applicant, against the county judge or chairman, or against the county as he shall deem just, and he shall en- ter judgment upon the record of his court accordingly. Sec. 71k (10). No releasement of revenue collectors. — No power shall exist either in the court or any other official to re- lease any officer charged with the collection of revenue or his sureties from the payment of any revenue, penalties, or fees which he or they may be liable for. Sec. 72. Compensation of the county trustee. — The compen- sation of the county trustee for receiving and paying over to the rightful authorities all moneys received by him shall be six per centum on all sums up to ten thousand dollars ($10,- 000), and four per centum on all sums above ten thousand dollars ($10,000) and up to twenty thousand dollars ($20,000), and a commission of two per centum on all sums above twenty thousand dollars ($20,000) ; provided, that in computing the compensation of trustee [trustees], all funds — State, county, school, and special — shall be taken and estimated as one, and each shall pay its respective portion of the above commissions on all sums of money received by said trustee for said State and county, respectively ; and provided, further, that at the time of the settlement with the proper officers of the State and county and the computation of his commission on collections said 244 Tennessee Tax Digest. trustee shall furnish said officers, respectively, with a certified statement from the judge or chairman of the county court, showing the amount actually collected by him and paid over to the proper State and county authorities, respectively, as heretofore provided ; provided, further, that the truste-e shall not be entitled to any commission on money turned over to him by his predecessor in office or on money borrowed for the use of the county or received from proceeds of sale or sales of bonds ; provided, further, that the trustee shall re- ceive one (1) per centum on all moneys collected from county officers on fees and on the school fund received from the State or on money turned over to him by clerks of the courts and other collecting officers. See sec. 74c, post, p. 246. Sec. 72). Rules and provisions for collection of delinquent municipal taxes. — In all instances in which current munici- pal taxes are collected by the county trustee the following pro- visions and rules for the collection of delinquent taxes that may be due to said municipalities and none other shall prevail and obtain, anything in this act to the contrary notwithstand- ing. (1) City taxes are delinquent, when.^ — The taxes levied and assessed by such municipalities shall become due and delin- quent on the date as now provided by existing laws. (2) Penalties on delinquent city taxes. — If such municipal taxes be not paid on or before the date fixed for the delin- quency thereof, then a penalty of five per cent, thereon shall at once accrue. If the same be not paid on or before the first day of the following month, then an additional penalty of two per cent, thereon shall accrue, and an additional penalty of one per cent, shall accrue on the first day of each month thereafter that the same shall remain unpaid until such penalty shall reach the sum of ten per cent, on the original tax, whereupon the said penalty shall be no further increased. General Assessment Law. 245 (3) Interest in addition to penalty on delinquent city taxes. — The accrual of the penalty aforesaid shall in no respect af- fect the interest to be paid on said taxes from the date they become delinquent, such interest to be paid as if no penalty had been imposed. (4) Sales for delinquent city taxes. — No distinct or inde- pendent sales by the trustee shall be made of the property upon which the said municipal taxes shall become delinquent, biit in respect of all municipal taxes the trustee shall sell there- for at the same time under the same advertisement and under all the proceedings here provided for at the next sale there- after to be made for delinquent State and county taxes, such next sale to be made for all taxes, except as hereinafter pro- vided, then delinquent to the State, county, and municipality. Sec. 74. Advertisement of delinquent land for taxes of 1908, and for all other years. — The trustee, when he advertises and sells property for delinquent taxes for 1906, State and county, or municipal, that at the same time and place in the manner now prescribed by law also shall advertise and sell all other property now in his hands upon which there are due taxes — vState, county, or municipal — and said advertisement shall show specifically that said property is not ofifered for sale for current delinquent taxes, but in other respects the advertise- ments and sale shall be in the same manner and of the same effect as the advertisement and sale of current delinquent taxes for the year 1906. Sec. 74a. Fees to be collected and paid over to the proper officials. — The fees heretofore chargeable against such prop- erty and fees hereafter charged to said property on account of the nonpayment of taxes required by law shall be collected by the trustee if he collects, or the circuit court clerk if he collects, and paid over to the proper officials. Sec. 74b. Sale to include all delinquent lands; same method as for sales of land for taxes for 1906. — This sale shall include 246 Tennessee Tax Digest. all property upon which there are delinquent taxes, whether suits have formerly been filed or not for the collection of the taxes— State, county, or municipal — and the same method of procedure shall [be] followed by the trustee and circuit court clerks as is provided for sales of property for delinquent taxes for 1906. Sec. 74c. Separate report of sales of land for delinquent taxes prior to 1906; trustee's compensation. — But the trustee shall certify in a separate book to the circuit court clerk the property sold for delinquent taxes prior to 1906, and the county court shall allow said trustee reasonable compensation for making up the necessary books. See sec. 12, ante, p. 243. Sec. 74d. Pending suits are not barred nor affected by such sales, where the State becomes purchaser. — [Neither] such sales, if the State becomes the purchaser, nor sale [sales] here- tofore made under chapter 258, Acts of 1903, sections 75, /(i, and 77 , shall in any way bar the prosecution of any suit now pending for the collection of delinquent taxes and that in re- spect of all such as are now pending in either of the circuit or chancery courts for the collection of delinquent taxes, which suits were filed prior to the passage of chapter 120, Acts of 1895. Sec. 74e. Comptroller authorized, through revenue agents, to prosecute pending suits, and to make settlements. — The comptroller is hereby vested with full and complete authority, through the revenue agents, to prosecute such suits to final de- cree and sale, and said revenue agent may make such settle- ments with such delinquent taxpayers as may be satisfactory to the comptroller. See sec. ITyi, post, p. 257. Sec. 74f. Compensation to be fixed; State, counties, and cities are not liable for costs, fees, and charges. — The compen- General Assessment Law. 247 sation-shall be fixed and agreed upon by the comptroller; and when the suits shall be made to embrace all delinquent taxes due upon the property, whether such property has formerly been sold to the State treasurer for the use of the State or not, in no event shall the State, county, or municipality be lia- ble for any costs, fees, or other charges unless the taxes are collected. RELIEF FOR PURCHASER AT TAX SALE FOR DEFECTIVE TAX TITLE. (Section 75.) Sec. 75. Right of subrogation and enforcement of lien against land bought under tax sales that cannot be recovered ; chancery jurisdiction regardless of the amount; bill for recovery of land and enforcement of right of subrogation. — All persons who shall buy any real estate sold under any provisions of this act for delinquent taxes which were in [a] lien thereon, and who shall from any cause fail to get a good title or to recover pos- session of the realty shall be subrogated to all liens that se- cured the taxes, and all costs, penalties, fees, and interest, and shall have the right to enforce such liens by bill in chan- cery and sale of the property for reimbursement of the pur- chase money and interest thereon ; and all persons who have purchased or shall hereafter purchase realty sold for taxes under chapter 1, Acts of 1897, or under chapter 435, Acts of 1899, are entitled to the same right or subrogation and the same remedy for its enforcement, and the chancery court shall have jurisdiction in all such cases, though the amount sued for be less than $50. Any person who shall purchase any real estate sold for delinquent taxes from a trustee or by redemption through the circuit court clerk may sue for pos- session by bill in the chancery court, and may file his bill in a double aspect, seeking to recover possession ; or if that relief is denied, then to enforce the right of subrogation as aforesaid, and the purchaser may avail himself of this remedy by bill in chancery without having taken any steps toward 248 Tennessee Tax Digest. a confirmation in the circuit court or a writ of possession .there- from ; or if he shall have taken any such steps, he may never- theless maintain his bill as aforesaid ; and in the event of his fa lure to recover the realty, then he shall have a lien thereon for the amount he paid for the same, with interest and costs, and his reasonable attorney's fees, to be fixed by the court, and shall be entitled to a decree for the sale of the realty to satisfy such lien, and in all such cases the chancery court shall have jurisdiction whether the amount sued for be more or less than $50. See sec. 64c, ante, p. 229. 1. Purchaser under void tax sale is entitled to be reimbursed for taxes and interest, but not for costs and penalties, and must pay costs of suit. — Where the sale of land for taxes is void, the purchaser is entitled to have refunded to him the taxes for which the land was sold, and all subsequent taxes paid by him, with interest on all, but no penalties or costs; and the owner seeking to have such sale de- clared void and removed as a cloud must pay such purchaser such sum. Costs of suit adjudged against such purchaser. Hamilton v. Gaslight Co., 7 Cates, 150, 154, 155. As to how far the purchaser at a judicial sale is protected as bona fide purchaser, see note to Riley v. Martinelli (Cal.), 21 L. R. A., 33. 2. Purchaser at void tax sale to be reimbursed for what. — Where a tax sale is void, the owner must refund to the purchaser the amount paid by him, with legal interest, and all costs, but not the penalty on redemption in valid sales. Bank v. Gay, 3 Shannon's Cases, 3. The owner must reimburse the purchaser the taxes, costs, and pen- alties paid at a void tax sale or subsequently, with legal interest, and must pay all costs of the suit prosecuted to recover the land. Bloom- stein V. Brien, 3 Tenn. Chy., 55, 68, 69. The purchaser at a void tax sale is entitled to be reimbursed for the taxes paid, with legal interest, and costs of suit, except the cost of his cross bill dismissed. Quinby v. Coal & Transportation Co., 2 Heis., 596, 605, 606: Strother v. Reilly, 21 Pickle, 54, 55. Where tax sales of land are invalid and void, the owner is not liable for the costs of advertising and selling the land. The penalties were disallowed for the reason stated, that the statute allowing penalties was repealed. State v. Duncan, 3 Lea, 679, 690, 691; Nashville v. Lee, 12 Lea, 452, 455. But the rights of individual purchasers at tax sales were not involved in either of these cases. — Ed. General Assessment Law. 249 3. Reimbursement for taxes paid.— The purchaser at a void tax sale is entitled to be reimbursed for the taxes paid by him upon setting aside the tax sale at the instance of the original owner. Strother v. Reilly, 21 Pickle, 48, 52-58, citing and approving many cases, and distinguish- ing Ross V. Mabry, 1 Lea, 226, in which it was held that the pur- chaser of land at tax sale is entitled to no lien for repayment of taxes, costs, and penalties, merely because he became the purchaser, without alleging the validity or invalidity of the title acquired. Where the complainant furnishes the money with which the taxes were paid pending the litigation, he is entitled to be reimbursed out of the rents in the hands of the receiver. Wicks v. Sears, 4 Lea, 300. The case of Ross v. Mabry, 1 Lea, 226, was not decided under this statute; and in view of this statute, and the said case of Strother v. Reilly, 21 Pickle, 48, the rule announced in Ross v. Mabry, 1 'Lea, 226, will not deprive the purchaser of his right to reimbursement where the question is properly presented by the pleadings and proof. — Ed. COUNTY REVENUE COMMISSIONERS. (Sections 76-76d.) Sec. 76. Election; eligibility; qualifications. — The quarterly courts at their July term, 1907, and each year thereafter, shall elect three competent citizens, not members of the county court, county court clerk, or deputy county court clerk, who shall be known as the " revenue commissioners " of the county. One of these commissioners shall be an expert accountant, and shall be selected as such. Sec. 76a. Term of office. — Their term of office shall begin on the first Monday in September following their election, and they shall hold office for two years, and imtil their successors are elected and qualified. Discrepancy in election and terms of office. — Attention is called to the discrepancy in the provisions that the commissioners shall be elected annually, and that their terms shall be for two years. The provision for the term of two years comes after that for the annual election. The previous acts, before Acts 1903, ch. 258, sec. 79, from which latter act the above section 76 was copied, provided for bien- nial elections and terms of two years. The last provision, for term of two years, should be controlling over the prior provision for an- nual elections. — F.d. 250 Tennessee Tax Digest. Sec. 76b. Oath. — Before entering upon their duties they shall subscribe to an oath before the clerk of the county court that they will well and truly discharge all duties that may de- volve upon them by law. Sec. 76c. Time of meeting; duties to be performed. — On Tuesday before the first Monday in January, April, July, and October of each year the revenue commissioners herein pro- vided for shall meet and critically examine the settlement [set- tlements] of the judge or chairman of the county court, with, all the collecting officers of the county. They shall inspect the reports of those collecting officers made to the judge or chairman, and the books of said officers, if necessary. They shall also carefully examine the financial report of the county judge or chairman, which is hereby required to be made quar- terly and be spread in full on the minutes of the county court. They shall examine the checks and warrants on which dis- bursements from the treasury have been made and compare these with the books of the treasurer or trustee. They shall ascertain what warrants have been drawn by the judge or chairman during the preceding quarter, which of these have been paid, which have been registered with the trustee and re- man unpaid, and how many, if any, have been either regis- tered or paid. The commissioners in each case shall look to see that the balances as stated in the report of the judge or chairman correspond with the balances shown to be on hand by the books of the treasurer or trustee and exhibit of the cash or assets which he has or should have on hand. The reve- nue commissioners shall report in writing at the end of each quarter the result of their investigation, and it shall be their special duty to call attention to any neglect or violation of duty which they may observe on the part of any official. Sec. 76d. Compensation. — The revenue commissioners shall be paid for their services such compensation as may be allowed them by the quarterly courts of the respective counties, not to exceed $3 per day for the expert accountant and $2 per day fuNfVERSIT ^ General Assessment Law. 251 for the other two members for the time actually engaged in the discharge of their duties ; provided, that commissioners shall draw pay for such time in each quarter in any county having a population of 50,000 or over under the federal cen- sus of 1900 at the discretion of the county court, nor more than ten days in any county having a population of less than 50,000 and more than 25,000, nor more than five days in any other county in the State. STATE REVENUE AGENTS. (Sections 77-77z.) Sec. 77. Appointment; term; bond; oath. — There shall be appointed by the comptroller three revenue agents, who shall hold their office for a term of two years from the date of their appointment. That part of the State to which each is assigned shall be designated by the comptroller. Each shall enter into bond in the penal sum of twenty thousand dollars ($20,000), with two or more solvent securities, to be approved by some justice of the supreme court or chancellor, before whom they shall take the usual oath of office. Said bond shall be made payable to the State, and conditioned on the faithful discharge of duty and for the covering into State treasury all moneys col- lected. Sec. 77a. Information to be furnished by comptroller. — The comptroller shall furnish them with such reports, documents, data, or other information as will facilitate their investigations. Sec. 77b. Duties of revenue agents under direction of comp- troller. — It shall be their duty, under the directions of the comptroller, to examine the records of all officials charged with the collection of State, school, or county revenue or any one who collects State or county revenue without authority of law to do so, or with the disbursement of revenue received from the State or county, and to investigate, when necessary, all bills of cost, fees, or other items certified to the State or county for payment out of the State or county treasury. 252 Tennessee Tax Digest. Sec. 77c. Duties of revenue agents independent of comp- troller. — If either of said agents shall have reason to believe that any officer having charge of the collection or disbursement of the State and county revenue is not properly collecting or disbursing such revenue or accounting for the same according to law, such agent shall make such investigation independent of an instruction from the comptroller, or he may do so at the written request of any taxpayer. . Sec. 77d. Reports of investigations. — They shall make re- port of each investigation at the close of the same under oath to the comptroller for State revenue and costs, and to county judge or chairman for county revenue and costs. Sec. 77^, Powers of revenue agents in making investiga- tions. — On entering the offices to make said invescigation they shall have the power to demand of all officers charged with the collecton of revenue the cash belonging to their office as State, school, or county revenue or their accounts in bank ; and if the public funds arc in bank, they shall have the right to examine the papers and records of said l)ank so far as they relate to said public fund. Sec. 77f. Revenue agents may institute suits or motions against delinquent collectors ; and for what other dues. — They shall have the right to bring suit, by motion or otherwise, against any delinquent revenue collector or other officer, in the name of the State, upon order of the comptroller or upon their own motion, for any State, school, or county revenues or moneys collected and not reported to said officials, or any moneys, revenues, costs, or fees which have been wrongfully certified, received, disbursed, or retained by said officials, or any moneys or revenues which were due the State or county, including fees, distributive shares of estates, funds arising from the sale of lands, balances unpaid to the owner, and other funds remaining uncalled for in the hands of any officer for more than two years. General Assessment Law. 253 Statute is unconstitutional to extent it authorizes sui's by the State revenue agents for moneys or funds belonging to individuals; con- struction of statute.- -This statute is doubtless valid to the extent that it authorizes suits to recover any moneys or funds belonging to the State or any county, regardless of the character of the same or the name or designation under which the moneys or funds may be classed; but to the extent that it undertakes to authorize suits by the revenue agents for the " fees, distributive shares of estates, funds arising from the sale of lands, balances unpaid to the owner, and other funds re- maining uncalled for in the hands of any officer for more than two years," where such moneys or funds belong to individuals, and not to the State or any county, the statute is doubtless unconstitutional and void. In Johnson v. Hudson, 12 Pickle, 630, 637-640, it was held that sec- tions 2 and 3 of ch. 137 of the Acts of 1895, codified in sections 666, 667, and 668 of the Code, were unconstitutional and void, because they operated as an unlawful invasion tof the rights of the citizen, and were in violation of section 8 of the first article of the constitution. In view of this undoubtedly C9rrect holding, the unconstitutionality of this statute to the extent stated seems to be unquestionable. It is true that the individuals owning such moneys or funds are not taxed with any fees or costs; but it is an unwarranted interference with their private affairs, for the State to undertake such a supervi- sion over their affairs. But the officers, though rightly holding these moneys or funds for the individuals owning the same, are unjustly taxed with fees for the r-evenue agents, as shown in sections below. This statute does not purport or undertake to preserve and make more secure the said moneys or funds belonging to individuals; but, without saying so in so many words, it does in fact undertake to confiscate said moneys and funds and to cover the same into the pub- lic treasury. See sec. 77n, post, p. 255. Of course, if this statute can be properly construed to include and embrace moneys and funds belonging to the State or county only, and not tiiose belonging to individuals, then the constitutionality of the statute upon the matter in question does not arise and is not in- volved. But by a proper and natural construction of the statute and its reasonably clearly expressed meaning, though awkwardly worded and not so clearly expressed as it should be, it seems to include and embrace moneys and funds belonging to individuals as well as those belonging to the State or county. In either dilemma, the statute cannot be applied and enforced as against the moneys and funds belonging to individuals, for two rea- sons that are clearly manifest and self-evident. (1) The statute can- not be applied and enforced as against the moneys and funds of indi- viduals, if by a proper construction it does not include and embrace the individual moneys .and funds, but is confined to the moneys and funds belonging to the State or county. (2) If the statute, by a 254 Tennessee Tax Digest. proper construction thereof, includes and embraces the moneys and funds of individuals, it is to that extent unconstitutional and void, as above shown, and for that reason cannot be applied and enforced as against individuals and their property. The unconstitutionality of the statute to the extent stated does not affect or invalidate the statute in any other respect. — Ed. Sec. 77^. Revenue agents may sue delinquent privilege tax- payers. — They shall also have authority to bring suit against any delinquent privilege taxpayer in the name of the State upon order of the comptroller or upon their own motion, in both instances the suit to be brought in the circuit or chancery court. Sec. 77h. Revenue agents to sue for certain penalties. — They shall also have the power, and it shall be their duty, to insti- tute proceedings to recover the penalties provided for in this act with regard to the failure of assessors and equalizers to perform the duties imposed by this act. See sees. 32q-32x, 33, and 33a, ante, pp. 185-189; sec. 37, subsec. 15, ante, p. 197. Sec. 77\. Examination of merchants' reports. — They shall also be required to examine semiannually, or oftener if in the opinion of the comptroller it is necessary, or they shall believe, it necessary, the reports of merchants, and inquire into [the] correctness of the said reports. Sec. 77j. Distress warrants may be demanded for false state- ments of merchants. — In case of false statements, they shall have the power to instruct and demand of the coimty court clerks tO' issue distress warrants for the collection of revenue rightfully due the State or county. Sec. 77k. But distress warrants not to issue without notice, and assessment by clerk. — But such distress warrant shall not issue until after said delinquent merchant is cited as set out above and the proper amoimt of ad valorem tax due, with cost and penalties fixed by the county court clerk. General Assessment Law. 255 Sec. 771. Power to investigate and sue for any claims of State or county. — They shall also have the authority to investi- gate any claims of the State or county for revenue due, and shall bring suit for the same as above. Sec. 77m. Compensation of revenue agents and assistant attorneys. — For their services they shall be allowed not ex- ceeding fifteen per cent, of the amount collected, received, or retained, which per cent, must be added to the amounts of. the recovery due the State or county in trust or otherwise and collected from the defaulting or delinquent taxpayer or officer and his bondsmen; provided, each revenue agent may, by and with the con.sent of the comptroller, employ an attorney to as- sist him in the duties devolved upon the revenue agents and to represent him, whose compensation shall be paid out of the fifteen per cent, as herein provided for, and in no instance shall the State, county, or municipality be liable for such attorney's fees. Sec. 77n. Revenue agents to report and remit. — Said reve- nue agents shall report and remit as other officials on blanks furnished them by the State comptroller to the proper authori- ties. Sec. 77o. Misdemeanor to refuse revenue agents access to books and records; fine. — It is hereby made a misdemeanor for any official to refuse to allow said revenue agents full and free access to all the books and records pertaining to or be- longing to his office, and any officials so refusing shall be lia- ble to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each refusal. Sec. 77p. Revenue agents to obtain allowance for taxes in pending suits. — They shall, by direction of the comptroller, present and obtain allowance, by the court [courts], both State and federal, of all taxes, whether privileges or ad valorem, due the State from property or its proceeds in the hands of re- 256 Tennessee Tax Digest. ceivers under appointment of the court or otherwise in the custody of the law. Sec. 77q. Revenue agents to sue for taxes payable directly to comptroller. — They shall likewise bring and prosecute suits upon direction of the comptroller for all delinquent taxes due from railroads, street and interurban electric railways, express companies, news companies, telegraph companies, telephone companies, or other taxpayer who is required to pay his tax directly to the comptroller's office. Sec. 77r. Attorney-general and district attorney-generals to assist revenue agents, when. — In all the suits brought or pros- ecuted by said revenue agents, if in the federal court, the at- torney-general, for the State shall assist therein ; and if in the circuit or chancery courts, the district attorney-general of the district wherein the suit is pending shall assist therein, but the attorney-general shall not be entitled to any fees for such serv- ices. Sec. 77s. Penalty to be added to recovery to cover compen- sation and expenses of revenue agents. — To indemnify the State against the compensation and expenses of said revenue agents, fifteen per cent, will be added to the recovery in all suits brought by said revenue agents against companies or par- ties who pay directly to the comptroller's office. Sec. 77t. Compensation of revenue agents to be paid out of fees; salary limited to $2, SCO; and remainder of fees go into State treasury. — For their services they shall be allowed not exceeding fifteen per cent, of the amount collected, received, or retained, which per cent, must be added to the amount of recovery due the State or county and' collected from the de- faulting or delinquent oflicer and his bondsmen or other tax- payer from whom the collection is made; provided, that no revenue agent shall receive more than $2,500 a year as his compensation, the remainder of the fees collected to be turned General Assessment Law. 257 into the State treasury, said compensation to be paid out of the fees collected by said revenue agent or agents. Sec. 77u. Expenses of revenue agents allowed out of fees in addition to salary. — The revenue agent or agents shall be entitled to retain out of the fifteen per cent, herein allov^ed as fees, in addition to the maximum salary herein allow^ed, their actual necessary expenses properly incurred in prosecuting and attending such business. Sec. 77y. Assistant attorneys employed by consent of comp- troller shall be paid out of fees only. — But nothing herein shall be construed to include any expenses for services of any at- torney, unless employed by the revenue agent, with the con- sent of the comptroller; and when he has thus been employed, he shall be paid out of the fifteen per cent, penalty hereinbefore provided for, but in no event shall the State or county be lia- ble for any attorney fee in excess of said fifteen per cent. Sec. 77w. Revenue agents to examine and report as to all State institutions. — Said revenue agents shall, at least once each year, examine into the accounts of the receipts and ex- penditures of all State institutions and report their findings to the governor, comptroller, and treasurer. Sec. 77y.. Penalty for failure of revenue agents to comply with section 74 to be deducted from salary. — Failure of reve- nue agent to comply with duties imposed upon him hereto- fore by section 74 shall subject him to a penalty of $100 in each instance, to be collected by the comptroller out of said agent's, salary. See sees. 74e and 74f, ante, p. 246. Sec. 77y. Comptroller to publish in his biennial report a detailed statement as to delinquent revenues collected, and as to revenue agents and their operations. — The comptroller shall be required to prepare a detailed statement, which he shall publish in his biennial report, showing the names of individ- 9 258 Tennessee Tax Digest. uals, firms, and corporations from whom delinquent revenue is collected, the amount collected in each case, and the amount of penalty collected thereon. He shall also show the names of his revenue agents, the date of their appointment, the amount of delinquent revenues and penalties collected by each agent, the amount of compensation paid to each agent, and all expenses of every nature incurred or paid in the collection of delinquent revenue through and by said agent. Sec. 77z. Delinquent revenue not to be paid to revenue agents, but to county court clerk and county trustee ; but rev- enue agents may collect from delinquent or defaulting offi- cials. — In all cases of back [assessments] or reassessments or proceedings to collect delinquent privilege taxes or merchant's ad valorem [taxes], instituted by or conducted by the State revenue agents or their attorneys, the tax shall be collected by and paid to county court clerk or county trustee, as the case may be, and the said official shall report same to the comp- troller after paying over to the revenue agents or their attor- neys the penalties collected for the account of said agents, and neither the revenue agents or [nor] their attorneys shall have any authority to collect said taxes and penalties, nor shall any receipt be issued by said agents or their attorneys for said taxes and penalties be of any force and effect in the hands of said delinquent taxpayers ; but this shall not affect the right or duty of said revenue agents to institute and conduct suits in the courts or to collect from delinquent or defaulting State and county officials as provided hereinabove. The word " be " in the fourteenth line of this section as here printed should be stricken out, but it appears in the engrossed act. — Ed. UNIFORM SYSTEM OF BOOKKEEPING. (Section 78.) Sec. 7S. To be prescribed by comptroller for State and county officials as to revenue ; but not books of particular pub- lishers. — It shall be the duty of the comptroller of the treas- General Assessment Law. 259 ury to prescribe a uniform system of bookkeeping", designa- ting the character of books, reports, receipts, and records, and the method of keeping same, in all State and county offices in the State handling State and county revenue, and it shall be the duty of all State and county officials in the State to adopt and use said system and the kind and character of books, reports, and records as designated by the comptroller; but nothing in this section is intended to give the comptroller the right to require the adoption or purchase, by said officials or by said counties, of the books or other records of any particular publisher or publishers. MISCELLANEOUS PROVISIONS. (Sections 79-81.) Sec. 79. Repeal of laws in conflict; operation limited. — All laws or parts of laws upon the subject of the assessment and collection of taxes and the sale of land for taxes in conflict with the provisions of this act are hereby repealed. This re- peal shall operate as to all taxes assessed under this act, but shall not operate so as to interfere with the taxes assessed prior to the passage of this act, except as hereinbefore specially otherwise provided. Sec. 80. Judges to charge grand jury; inquisitorial powers given. — It shall be the duty of each judge of the courts of the State having criminal jurisdiction to specially give in charge to and have the grand jury of his court specially inves- tigate all offenses defined in this act, and inquisitorial power is given to grand juries in the premises. Sec. 80a. District attorneys to prosecute ex officio, when. — It shall also be the duty of the respective district attorneys of this State, upon the information or at the request of any rep- utable citizen of the State, to investigate and prosecute ex officio all the offenses defined in this act. 26o Texxessee Tax Digest. Sec. 81. Statute is effective, when. — This act [shall] take eitect from and after its passage, the pubhc welfare requir- This statute became effective April 15, 1907. — Ed. COLLECTION OF TAXES IN FRACTIONAL PARTS OF NEW COUNTIES TAKEN FROM OLD COUNTIES OWING RAILROAD DEBTS PRIOR TO SEP- ARATION. (1905, ch. 411 -effective April 15, 1905.) The preamble is omitted. Section 1. Trustee of new county to collect taxes in frac- tional parts taken from old counties for debts, when. — The county trustee and tax collector of the new county, from which fractional parts of an old county was [were] taken to form said new county, or where parts of one county is added to another, and which parts so taken off are liable for a pro rata part of an indebtedness created and owing by said old county prior to the separation, is hereby made the agent and col- lector for said old county to collect and receive and receipt for, and it shall be his duty to do so, any and all taxes levied and assessed by said old county, for the purpose of paying oft* said indebtedness or the interest thereon in the name of and as agent and tax collector for said old county owing said indebtedness prior to said separation and for which said frac- tional part of said new county is liable under the law, to the end that the citizens and taxpayers of said new counties may pay all of their taxes, including special taxes collected here- under, to one collector, the trustee of said new county to which territory so taken may have been added. Sec. 2. Tax books to be made by whom, and to show what, and to be delivered to trustee. — It shall be the duty of the county court clerk of the county from which said territory was taken and added to another county to make out a tax booK Collection of Taxes in Parts of N^ew Counties. 261 or books under the laws as to such properties for the collec- tion of special taxes as now or that may hereafter be provided from the assessment books in his hands or returned to him under the law governing the assessment of property for tax- ation in such territory, which book or books shall show the amount of taxes due each and every year respectively for which said book or books are made out, and to deliver said book or books to said trustee or tax collector of said new county, whose duty it shall be to receive and receipt for same, and which shall be delivered to him at the same time that the tax books are delivered under the general assessment laws now in force and which may be hereinafter enacted governing State and county taxes. As to what the tax books shall show, see sec. 2d, below. Sec. 2a. Trustee to collect taxes. — The said trustee of [the] new county shall immediately proceed with the collection of said special taxes in the same manner and with the same au- thority that he does the State and county taxes under the gen- eral law governing the collection of same. Sec. 2b. Compensation of trustee. — As compensation for the collection of said special taxes in the fractional parts of old counties added to new counties, he shall receive four per cent. Sec. 2c. Trustee's bond. — Before entering upon the collec- tion of such taxes it shall be the duty of the county trustee of said new county to make and enter into a good and solvent bond in a sum double the amount of such taxes to be collected for the collection of same, and for the faithful performance of his duties as such special collector, and for the accounting to the proper official of said old counties for the taxes collected by him hereunder on or before the first day of June of each and every year, beginning with the first of June, 1906, See sec. 5, below. 262 Tennessee Tax Digest. Sec. 2d. Tax books to show what. — The tax book or books to be delivered to the said trustee hereunder shall conform to the provisions of the general assessment law, in setting out the nam^es of the owners of the property, the amount assessed for and the amount of taxes due and for what purpose, ail of which shall be set out under appropriate heads with a de- scription of the property, number of acres, and valuation as taken from the assessment lists or books. See sec. 2, above. Sec. 3. General assessment laws for assessment and collec- tion of taxes shall govern, except as modified by this act ; spe- cial provisions. — The general assessment laws gov^erning the collection of taxes and the provisions for their enforcement shall apply to the taxes to be collected hereunder in all things except as herein set out and not in conflict with the provi- sions of this act. The said taxes shall be and become dchn- quent at the same time as provided in the general assessment law for State, county, and special taxes, and shall bear the same interest and be liable for the same penalties, and are to be enforced after they become delinquent by said trustee m said new county in the same manner, and he is hereby given the same power and authority as is now conferred by law upon him for the enforcement and collection of the State and county taxes in his county, and to that end the tax book or books furnished him as herein provided, or lists which he is hereby empowered to furnish and deliver to his deputies or to constables of the various districts in said new county formerly composing a part of said old county owing said indebtedness for which said taxes were assessed, shall have the force and effect of a judgment of a court of record, and a distress war- rant and execution from a court of record authorizing him to make distraint and sale of any personal property liable there- for under the general tax laws, and property so levied upon shall be sold in the same manner as is provided for sales of like kind for State and county taxes proper under distress and execution for taxes. Collection of Taxes ix Parts of New Counties. 263 Sec. 3a. Delinquent taxes to be certified to old county, and collected by sale of property ; collected taxes to be paid over ; new county released, when. — All taxes remaining unpaid on the tax books of said fractional part of such new county on the first Monday in June of 1906, and every year there- after, shall be certified back to the chairman of the county court of said old county by the trustee of said new county, who shall give him credit for such taxes as remain unpaid, and at which time he shall also pay to the trustee of old county all money collected hereunder, and the tax books shall then be delivered to the trustee of said old county, who shall pro- ceed to collect same or to sell said property for the amount of taxes, interest, and penalties and costs as now provided by the general assessment law, or as may hereafter be pro- vided by law for sale of property for State and county taxes; provided, that the amount collected under this act shall be applied to the payment of the pro rata part of said debt and interest after this date owing by said new county, and when the amount thus paid shall equal the pro rata due by them and accruing interest, the said new county is released from ail further liability on account of said debt. Sec. 4. Application of act limited. — The provisions of this act shall apply only to a fractional part of a new county taken from an old county, and which old county owes a railroad debt created prior to the separation of said fraction from said old county, and to the collection of taxes imposed for the col- lection of such debt or the interest thereon. For statute as to all debts, see Acts 1907, ch. 602, sec. 13 (sec. 13a, ante, p. 134). Sec. 5. Penalties for failure of trustee to execute bond and to faithfully perform his duties. — A failure on the part of the trustee of such new county to execute a bond for the collec- tion of said tax and a faithful performance of his duties as such collector shall subject said trustee to all the pains, penal- lies, and forfeitures now provided by law or that may here- 264 Tennessee Tax Digest. after be provided by law applying to the collection of and accounting- for State and county revenue by county trustee and tax collectors. See sec. 2c, above; Acts 1907, ch. 602, sec. 13 (sec. 13a, ante, p. 134). Constitutionality of this act considered. — This act undertakes, as its title purports, to provide a method of collecting taxes in fractional parts of new counties taken from old counties, where the old coun- ties were owing an indebtedness prior to the separation of said frac- tional parts of said new- counties, and for their proportional part of which said fractional parts of said new counties are still liable. The title is confined to fractional parts taken from old counties in the formation of new counties, while the body extends to and includes the parts taken from one county and added to an existing county. This makes the body of the act contain a subject not expressed in the title. See const., art. 2, sec. 17. The subject expressed in the title is restrictive, and cannot be ex- tended in the body of the act, but must be confined, restricted, and limited in the body as in the title. The subject of the body of the act is only partly expressed in the title. Where the title is restrictive as in this act, the fact that the sub- jects are germane or kindred does not save the act from unconstitu- tionality. The subject expressed in the title is not general so as to permit the body of the act to embrace other kindred subjects, but is expressly restrictive. Hyman v. State, 3 Pickle, 109, 113; Kennedy v. Montgomery Co., 14 Pickle, 165, 178, 179; State v. Bradt, 19 Pickle, 592; State, ex. rel., v. Brev/ing Co., 20 Pickle, 128; Saunders v. Savage, 24 Pickle, 345; Goodbar v. Memphis, 5 Cates, 25, 37, 38. An existing county does not become a new county, in the sense of the law and constitution, when a part of another county is added to it; but a new county is one newly formed and organized out of ter- ritory taken entirely from existing counties. There are several inconsistencies and irregularities in the provi- sions of the act. In the first section, the act is made to apply " where parts of one county is added to another," in addition to its applying where fractional parts of an old county were taken to form a new county; while in the fourth section, the provisions are made to "ap- ply only to a fractional part of a new county taken from an old county," where the old county owed a railroad debt created prior to the separation of the fraction from the old county. If the last pro- vision shall control and annul the first provision so as to limit and confine the body of the act to the subject expressed in the title, then the act may be constitutional, and this construction might be given to the act to save it from unconstitutionality. Part of the second section applies where territory was taken from Assessment of Railroads, Telegraphs, Telephones. 26 one county and added to another, and part applies where such terri- tory is taken from one county to form a new county; and the appli- cations are contradictory, conflicting, and inconsistent. However, a different method is applicable to all debts of old coun- ties in Acts 1907, ch. 602, sec. 13 (sec. 13a, ante, p. 134), which was also the law in Acts 1903, ch. 258, sec. 14, at the time of the above enact- ment in 1905. — Ed. ASSESSMENT OF RAILROAD, TELEGRAPH, AND TELEPHONE PROPERTIES FOR TAXES, AND COLLECTION THEREOF. (1897, ch. 5— effective April 10, 1897.) Section 1. Office of State tax assessors created. — The office of State tax assessors is hereby created with the powers and ciuticb hereinafter prescribed. Sec. la. Appointment and qualification. — It shall be the duty of the governor, on or before the first Monday in May, 1897, and biennially thereafter, to appoint three freeholders, being citizens of the State of Tennessee, neither of whom shall be interested in, nor connected in any manner with, the man- agement of any railroad, telegraph, or telephone company, and shall commission them as State tax assessors, who shall hold their office for a period of two years from the first Mon- day in May, and until their successors are appointed and qual- ified ; provided, said appointments shall not be made if a rail- road commission shall be created at the present session of the general asssembly authorizing and requiring the appointment of three railroad commissioners (other than State officers) with salaries attached, and in that event said railroad commis- sioners shall ex officio constitute the " State tax assessors " of railroads, and shall be authorized and required to perform all acts, duties, etc., prescribed by this act, without other salary or compensation than that allowed under the act creating a railroad commission. Sec. lb. Oath. — Said assessors shall, before entering upon the discharge of their duties, respectively take and subscribe 266 Tennessee Tax Digest. to an oath before a judge of the State of Tennessee (who shall certify the same to the secretary of State for preservation), that they will honestly, faithfully, and without fear, favor, or partiality, discharge all the duties imposed upon them by law. Sec. Ic. Compensation and expenses^ — They shall be paid for their services the sum of six dollars ($6.00) per day while engaged in the discharge of their duties, together with actual traveling expenses, verified by affidavit, all of which shall be paid by warrant issued by the comptroller; provided, that no expenses, other than office materials, shall be charged or paid during the time said assessors are engaged in the discharge of their duties at the capitol. Sec. Id. Organization; secretary and his pay. — On the first Monday in May, after their appointment and qualification, said assessors shall meet at the State capitol and organize by se- lecting one of their number president, and selecting a secre- tary, who shall be paid for his services the sum of four dol- lars ($4.00) per day during the time he is engaged in the dis- charge of the duties herein imposed upon him. Sec. le. Pay limited. — Said assessors shall not be paid for more than ninety (90) days' service unless otherwise directed by the governor, who is authorized to direct said assessors to continue in the further discharge of their duties for a period not exceeding sixty (60) days during their term of office. Sec. If. Quorum. — Any two of said assessors shall be and constitute a lawful board of assessors, and may do and per- form all the duties enjoined upon them by this act, and they may jointly and singly examine any property hereinafter re- quired to be assessed by them. 1. Explanatory note on statute. — The railroad commission was cre- ated by statute enacted as contemplated by this statute, and the said railroad commissioners are authorized and required by this statute to perform all acts, duties, etc., prescribed by this statute without salary or compensation other than that allowed under this statute (Acts 1897, ch, 10), creating a railroad commission. So, all such part Assessment of Railroads, Telegraphs, Telephones. 267 or parts of this section as provide for the appointment of State tax assessors, and their compensation, and other provisions personal to them as such officers, are suspended and nonoperative. — Ed. 2. Assessments ratified. — The assessments for 1897 and 1898 are ratified and confirmed by Acts 1898 (ex. ses.), ch. 5. Sec. 2. Corporations to file schedules. — It shall be the duty of the owners of any railroad, telegraph, or telephone prop- erty in the State of Tennessee to file with the comptroller of the State on or before the first day of May, 1897, and biennially thereafter, on or before said date, the following schedules : Sec. 2a. Railroad schedules. — The schedule required of the owner of any railroad property engaged in the business of common carriers shall contain a statement of all its property — real, personal, and mixed — owned or leased by such compa- nies, setting forth therein the length in miles of its entire roadbed, switches, and sidetracks, showing the number of miles lying in this State, in each county of this State, and each incorporated town in this State, and the value of the whole ; the amount of the capital stock, bonded debt, the gross annual receipts of the preceding fiscal year, the number of cars, their classes and value, the number of engines and their value, the location, description, and value of all depot buildings, ware- houses, and other real estate, where located, and all real, per- sonal, and mixed property belonging to the company not be- fore enumerated, together with its value. Sec. 2b. Telegraph and telephone schedules. — The schedule required of the owners of telegraph and telephone properties shall contain a complete statement of the number of miles of lines of wires of its entire property, and showing how many miles thereof are in this State, and in each incorporated town and county, together with the value of the whole ; the total number of instruments in use in this State and their value, the number of batteries and their value, the capital stock, the gross receipts from the business in this State during the pre- 268 Tennessee: Tax Digest. ceding fiscal year, and the location, value, and description of all other property — real, personal, and mixed — in this State. Sec. 3. Schedules to be verified and filed ; penalty for failure. — Said schedules shall be verified by the affidavit of the owner or receiver of any such property ; and if owned by a corpora- tion or joint stock company, the president or secretary shall make such affidavit ; and said schedule shall be filed with the comptroller of the State within the time above prescribed ; and the owner of any such property refusing or failing to file said schedule shall be deemed to have waived the mode and manner of ascertaining the value of such property, and shall not be permitted to be heard in opposition to the valuation fixed upon such property by said State tax assessors [railroad commissioners acting as siich], and shall, in addition, be lia- ble to a penalty of $1,000, and it shall be the duty of the at- torney-general of the State to sue for and collect the same before any court of competent jurisdiction in the same manner as any other debt, penalty, or forfeiture is now collected by law. Sec. 4. Comptroller to furnish schedules. — Said State tax assessors [railroad commissioners acting as such] shall re- ceive from the comptroller the schedules filed, immediately upon their organization, and it is hereby made the duty of the comptroller to deliver the same to said State tax assessors [railroad commissioners acting as such], and they shall imme- diately proceed to ascertain the value of said property for tax- ation. Sec. 5. Valuation of property, how ascertained; power to examine witnesses and books, etc. — Said State tax assessors [railroad commissioners acting as such], in arriving at the valuation of said property, shall have in view, and look to, the capital stock, the corporate property, franchises of each com- pany, and the gross receipts, and the market value of the shares of stock and bonded debt ; and to ascertain these facts they are hereby invested with the power tO' summon before Assessment of Railroads, Telegraphs, Telephones. 269 them any person or persons and call for any books, administer oaths, and examine any such person or books touching any matters deemed necessary to enable them to arrive at the cor- rect value of such property ; and they may issue summons to any county in the State, to be executed by the sheriff of such county. Sec. 5a. Perjury; failure of witness to attend is a misde- meanor; fine. — Any person so called on to testify shall be g-uilty of perjury if he shall testify falsely; and any person failing to attend when summoned shall be guilty of a misde- meanor punishable by fine of $100 and thirty days in jail. Sec. 6. Road and lines include what. — The road of any rail- road property shall include all said tracks, switches, bridges, trestles, tifcs, rails, and superstructure of every kind; the line of any telegraph and telephone company shall include all wires, poles, instruments, and rights of way. Sec. 7. Distributable property defined, and assessed, how. — The roadbed, rolling stock, franchises, choses in action, and personal property of a railroad property [properly] having no actual situs, shall be known as distributable property and shall be valued separately from the other property ; and after ascer- taining the total value of such distributable property wherever situated, and after having deducted from this value $1,000, said assessors shall divide the remainder by the number of miles of the entire length of the road, and the result shall be the value per mile of such distributable property for the pur- pose of taxation ; and the value per mile of such distributable property shall be multiplied by the number of miles in this State, and the product thereof shall be the sum to be assessed against such property for State purposes ; and the value per mile so ascertained shall be multiplied by the number of miles in each county or incorporated city, and the product shall be the amount to be assessed upon such property by said counties and incorporated towns, respectively. 270 Tennessee Tax Digest. 1. Bonds owned by railroads are assessable as distributable prop- erty; back assessments and reassessments to be made by railroad commissioners. — Under this section and the next section below, State, county, municipal, and railroad bonds, as the property of a railroad company, are assessable for taxation as its distributable property, and not as its localized property. State v. Railroad, 12 Pickle, 385, 386- 392. And the back assessment and reassessment thereof cannot be made by the county trustee, but must be made, under section 20 of this statute, by the railroad commissioners. See note 3 under said section 20, post, p. 278. 2. Same rule applicable to telegraphs and telephones. — The same rule would probably apply to telegraph and telephone companies un- der section 19 of this statute, post, p. 277. — Ed. 3. Separate valuations on certain parts of roads. — The main stem, extensions, roads bought or leased, and branches of a railroad com- pany should be assessed separately; and the value of each should be apportioned to the several counties and towns through which they respectively run, in proportion to the relative length in the counties and towns to the whole length, as indicated in sections 838-845, and notes. Railroad v. Bate, 12 Lea, 573, 579-581. 4. Roadbed, franchise, and superstructure assessed together. — The roadbed, franchise, and superstructure are so essentially intermingled, and each so indispensable to the value of the others, that they should be assessed together, without separately estimating their value. Franklin Co. v. Railroad, 12 Lea, 521, 537, 538; Railroad v. Bate, 12 Lea, 573, 581; Railroad v. Morrow, 3 Pickle, 412; Dayton v. Coal & Iron Co., 15 Pickle, 582; Railroad v. Harris, 15 Pickle, 697 (the fran- chise must be included in the assessment, unless it is exempt from taxation); Railroad v. Wright, 151 U. S., 479, 480, 38 L. ed., 243. 5. Right of way and franchise of street railway, etc., how assessed. — The right of way of a street railroad is an easement in realty, and is assessable as realty; and this easement and the franchise may be as- sessed together as a separate item from its other property, though it would be better to assess it as a whole, including, as elements of value, its franchise, right of way, iron rails, ties, spikes, etc., as to- gether constituting so much street railway. Railroad v. Morrow, 3 Pickle, 412-414; Railroad v. Harris, 15 Pickle, 697. 6. Distributable property, how valued. — The distributable property may be valued together as a whole. Railroad v. Bate, 12 Lea, 581, 582. 7. The distributable method of assessing railroads approved. — No better mode of determining the value of that portion of a railroad. Assessment of Railroads, Telegraphs, Telephones. 271 within any one county, for taxation, has been devised than that of ascertaining the value of its whole road, its whole rolling stock, its franchise, its choses in action, and its whole nonlocal property, and apportioning the value within the county by its relative length in the county to its whole length. Franklin Co. v. Railroad, 12 Lea, 521, 537-542; State v. Railroad, 12 Pickle, 401; Dayton v. Coal & Iron Co., 15 Pickle, 582; State Railroad Tax Cases, 2 Otto, 92 U. S., 608, 609, 23 L. ed., 671, 672; Railroad v. Wright, 151 U. S., 479, 480, 38 L. ed., 243. This rule as to counties, by analogy, is applicable to municipal cor- porations. — Ed. 8. Exemption of one thousand dollars allowed but once. — A rail- road company is entitled to the exemption of one thousand dollars from taxation; but where it is allowed the exemption upon its main stem, none should be allowed it upon its extensions, branches, or other roads. Railroad v. Bate, 12 Lea, 573, 582. 583. 9. Distributable railroad property includes what.— It was not in- tended by Acts 1897, ch. 5, sees. 6, 7, and 8, to alter, change, or mod- ify the description or definitions of distributable and localized property as set forth in Acts 1882 (ex. ses.), ch. 16, sees. 2 and 3. The term '• roadbed," as used in sections 2 and 3 of the act of 1882, and the terms " road,'" as used in section 6 of the act of 1897, and " roadbed," as used in section 7 of the act of 1897, were intended by the legislature to be used not only as synonymous and interchangeable terms, but as synonymous with the " roadway " or *' right of way " of a railroad. Ordinarily and in many assessment acts the term " roadbed," as ap- plied to railroads, has a much narrower significance than the " road- way " of a railroad. San Francisco v. Railroad, 63 Cal., 467; Santa Clara County v. Railroad, 118 U. S., 395. The roadbed of a railroad usually means merely the bed or foundation upon which the super- structure of a railroad rests, while a roadway has a more extended significance, that is, in addition to the part denominated " roadbed," the roadway includes whatever space of ground the company is al- lowed by law in which to construct its roadbed and its track. In other words, " roadway " is practically synonymous with a " right of way," which has a twofold significance, meaning, as applied to rail- roads, not only the right to cross property, but also the strip which the railroad appropriates, or the space of ground allowed a railroad by law on which to construct its roadbed (Keener v. Railroad, 31 Fed., 128), which in this State cannot be more than 200 feet to railroads incorporated under the general act (Acts 1875, ch. 142, sec. 6); and we understand a similar restriction is imposed upon the Nashville and Chattanooga Company by its charter. The legislature intended distributable property to include the roadbed or roadway, meaning the right of way, as hereinbefore de- fined, with the tracks thereon (both main tracks and sidings, or 272 Tennessee Tax Digest. switches, incident thereto), the franchises, choses in action, and per- sonal property having no actual situs; and that, when its application will result in a valuation in approximate conformity with the consti- tution, the mileage basis should be followed in the assessment of dis- tributable property. In other words, the mileage basis is the rule generally applicable to such propertj', to be departed from only when its application would result in failure to attain a constitutional assess- ment, both as to value and uniformity. Opinion of Attorney-General Gates. 10. Localized railroad property includes what. — The localized prop- erty of a railroad includes not only depot buildings, but all other real estate having an actual situs, such as *' office buildings " or the " yards " or " terminals," with whatever may be erected thereon, off of and not a part of the roadway or main right of waj^ described above. Opinion of Attorney-General Gates. See. sec. 8, below. 11. Mileage basis of valuation; elements of valuation to be consid- ered. — The primary duty of assessors of railroad property is to ascer- tain its value; and while the mileage basis should be followed in the assessment of distributable property when the result will be to ascer- tain the value of such property, nevertheless the State board of assess- ors is not required to absolutely follow the mileage basis when, on account of the situation or peculiar use of the property, the application of such rule would result in discrimination or failure to attain approxi- mately the constitutional standard in respect of value; but in such case it is the duty of the assessors, in order to ascertain the value of any property subject to assessment by them, to take into consideration all elements of value entering into the property, and to that end to exer- cise the full power to obtain information conferred (Acts 1897, ch. 5, sec. 5) upon them, in order to enable them to better arrive at the true value of the property. Opinion of Attorney-General Gates. Sec. 8. Localized property defined and assessed, how. — The depot buildings and other property — real, personal, and mixed — having an actual situs, shall be known as the localized prop- erty of such railroad, and shall be valued separately accord- ingly as the same may be located in any of the counties or in- corporated towns in this State. See notes under sec. 7, above. Sec. 9. Minutes to be kept ; reports, documents, and proof to be filed. — It shall be the duty of the secretary of said as- Assessment of Railroads, Telegraphs, Telephones. 273 sessors to transcribe into a well bound book the entire pro- ceedings of said assessors, to be approved and signed by them each day. The secretary shall carefully preserve and file away all re- ports, documents, and proof taken and used by said assessors. Sec. 10. Additional proof to be reduced to writing. — Said assessors shall, in addition to the schedules hereinbefore re- quired, take such additional proof and require such additional information of the value of any property to be assessed by them as may be deemed proper; but such additional evidence shall be reduced to writing and an apportunity afforded, if desired, to the owner of any property to submit additional evidence or counter evidence to that acquired by said assessors, and the records of the assessors shall at all times be opened [open] to inspection to the owner or owners of any property assessable under the provisions of this act. See note 2 under sec. 12, post, p. 274. Records of proof of values to be completed by assessors. — Unfin- ished records of proof of value of railroads to be completed by the assessors. Railroad v. Bate, 12 Lea, 573; Harris v. State, ex rel., 12 Pickle, 511 (such unfinished records may be remanded to the assessors by the board of examiners for such additions and amendments as will supply the defects). Sec. 11. Assessments to be completed, when; exceptions and additional evidence acted on; all to be filed, when. — Said as- sessments shall be completed on or before the first lyionday in August, and within ten days from the first J^Jonday in Au- gust the owner of any property assessed may appear and file exceptions to said assessments, together with such evidence as they may desire to submit as to the value of the property assessed ; and at the expiration of said ten days said assessors shall reassemble and examine such additional evidence and exceptions as may have been filed and change the valuation accordingly ; on or before the first Monday in September said State tax assessors shall file with the comptroller the assess- 274 Tennessee Tax Digest. ments made by them, together with all other records of every kind and character. Sec. 12. Board of equalization; duty and powers. — The gov- ernor, treasurer, and secretary of State are hereby constituted a board of equalization, of which the governor shall be chair- man, and the secretary of State, secretary, and within three days after the comptroller shall have received the assessments and records from the said State tax assessors [railroad com- missioners acting as such], he shall deliver the same to the governor, and said board of equalization shall proceed to ex- amine said assessments, so made by the assessors, and they are hereby authorized to increase or diminish the valuation placed upon any property valued by said assessors, and are further authorized to require of said assessors any additional evidence touching any one or more of the properties assessed, and shall consider such additional evidence so furnished by said assessors in fixing the correct value of any property so assessed, and said assessments shall not be deemed complete until corrected and approved by said board of equalization ; and the governor is hereby authorized to call together said assessors at any time to perform the duties imposed upon them. 1. Mandamus by board of equalization against railroad commission- ers. — Mandamus will lie at the instance of the members of the board of equalization as relators, in the name of the State, against the comp- troller and the railroad commissioners, to compel the performance by them, respectively, of the duties enjoined by statute in respect to the assessment of the distributable property of railroads. Harris v. State, ex rel., 12 Pickle, 496, 505-512. And the same rule would likely apply as to assessment of telegraph and telephone companies under section 19 of this statute, post, p. 277.— Ed. 2. Assessment not complete until passed on by board of equaliza- tion. — The assessment of the distributable property is not complete until it has been acted upon by the board of equalization, and cor- rected and approved by such board. See Harris v. State, ex rel., 12 Pickle, 496, 506. Sec. 13. To certify valuations to the comptroller. — On or before the third Monday in October said board of equalization I Assessment op Railroads, Tei.egraphs, Telephones. 275 shall certify to the comptroller the valuation fixed by it upon each property assessed under this act, and the action of the board of equalization in fixing the valuation upon such prop- erty shall be conclusive and final, and the valuation so fixed shall be assessed against said property and the taxes due there- under be paid. 1. Not final, when. — The action of assessors is not final unless they proceed according to the law and constitution. Railroad v. Bate, 12 Lea, 573-578; Railroad v. Gaines, 3 Tenn. Chy., 478; Dows v. Chicago, 11 Wall., 78 U. S., 108, 20 L. ed., 65, and note. 2. Assessment upon written proof. — Where it appears that the re- quired notice is not given; that the values fixed by the assessors are in excess of those shown by the proof returned by them; that the as- sessors may have based their estimate of value upon their personal knowledge, which was not reduced to writing and sworn to, nor an opportunity to cross-examine allowed to the parties in interest, it is the right of those about to be injured to ask for, and the duty of the courts to grant, a restraining relief, which may be done by and upon petition for writs of certiorari and supersedeas. Railroad v. Bate, 12 Lea, 573-578. See sees. 9 and 10, ante, pp. 272, 273. • 3. Roads exempt may enjoin assessment. — Where the railroads are exempt from taxation under their charter granted before the present constitution, they are entitled to an injunction enjoining the assessors from reporting the assessments to the comptroller, and the latter offi- cer from certifying the valuations to the counties and municipal cor- porations through which the roads run, to avoid a multiplicity of suits. Railroad v. Gaines, 3 Tenn. Chy., 478. 4. Injunction to restrain collection of taxes. — When an injunction to restrain the collection of a tax will be granted. Dows v. Chicago, 11 Wall., 78 U. S., 108, 20 L. ed., 65, and note. Sec. 14. Comptroller's duties. — As soon as the comptroller shall have received said valuations from the board of equal- ization, he shall ascertain the amount of taxes due the State from the owner of each property assessed, and notify the owner of the same by letter or otherwise, and he shall certify to the county court clerk of each county in which any of such property lies, tlie amount to be taxed in said counties, respec- 276 Tenxessee Tax Digest. tively, for county purposes ; and likewise to the mayor of any incorporated town the amount to be taxed by such town. See Acts 1901, ch. 48, sec. 9, post, p. 282. Sec. 15. Taxes a first lien. — The taxes so assessed in behalf of the State, counties, and cities, shall be a first lien upon the property from the tenth of January of the year for which the taxes are assessed, and they shall be due and delinquent as all other ad valorem taxes. See Acts 1907, ch. 602, sec. 31, and notes thereunder, ante, p. 176; also Acts 1901, ch. 48, sec. 10, post, p. 282. Sec. 16. Collection and disposition of taxes. — The taxes so assessed on behalf of the State shall be collected by the comp- troller and paid into the State treasury as soon as received by them I him I ; and if the same shall become delinquent, he shall issue distress warrants against the owner of any such property to any sheriff in the State, whose duty it shall be to collect the same and make a return thereof within thirty days ; and if the taxes shall not be collected by the sheriff, it shall be the duty of the comptroller to advertise said property for a period of thirty days by weekly publications in a nev/spaper pub- lished in the city of Nashville, Tennessee, and at the expira- tion of such time sell at the courthouse door said property for cash, free from the equity of redemption, and execute to the purchaser a deed or deeds to the property so sold, and after reserving the expenses of such sale and the taxes, together with six per cent, interest from the time the same became de- linquent, hold the remainder subject to the order of the owner of such property so sold. See Acts 1901, ch. 48, sec. 11, post, p. 283. Sec. 17. County and city taxes collected as other taxes. — The taxes due to any county or city shall be collected as any other county or city taxes may be collected by law and at the rate fixed by such county or city. See Acts 1901, ch. 48, sec. 12, post, p. 283, Assessment of Railroads, Telegraphs, Telephones. 277 Sec. 18. Time of assessments.— Said assessments shall be made biennially, beginning with the year 1897. Sec. 19. Mode of assessments, and by whom made. — The State tax assessors [railroad commissioners acting as such] shall not assess any other telephone and telegraph property except the lines of wire, poles, instruments, batteries, etc., but real estate and personal property having an actual situs shall be assessed by regular county and city assessors. See sees. 7 and 8, and notes; notes under sec. 12. Sec. 20. Errors and omissions in assessments, how cor- rected. — If at any time it shall appear to the satisfaction of the governor of Tennessee that any railroad, telegraph, or tele- phone company is inadequately assessed, or that its property has been omitted from taxation, or any new line has been contracted, it shall be his duty, and he shall have the power to convene the said board of assessors [railroad commission- ers acting as such] to make the proper assessment, and they shall have the power to do so, and their assessment shall go to the board of equalizers as upon appeal upon the record, as is provided in cases of assessment in the first instance. The board of equalizers shall examine and act upon such record as soon as practicable, and certify their final action to the comp- troller, the correction of the taxes so assessed to be then pro- ceeded with according to the regular course ; and neither the comptroller of the treasury nor any other officer than said board of assessors [railroad commissioners acting as such] shall have the power or authority to back assess or assess any railroad, telephone, or telegraph company. 1. Statutes repealed or suspended. — Sections 824-859 of the Code are repealed, or, more properly, suspended, by implication by the foregoing statute, and some of the sections are expressly repealed, by Acts 1897, ch. 1, sec. 89, and Acts 1897, ch. 7. This statute is intended to be, and is, a compilation of the statutes on this subject, which in the case of Harris v. State, ex rel., 12 Pickle, 496, 509, 510, were held to constitute a system that should be construed so as to make that system consistent in all its parts and uniform in its operation. 278 Tennessee Tax Digest. 2. Railroad commissioners to back assess and reassess railroad, tel- egraph, and telephone properties.— Under this statute, and especially sections 19 and 20 thereof, the railroad commissioners, acting as the board of State tax assessors, are authorized and empowered to make back assessments of all unassessed railroad, telegraph, and telephone distributable properties, and to make reassessments of all inadequately assessed distributable properties of railroads, telegraphs, and tele- phones. Previous to this statute such back assessments and reassess- ments of such properties were made by the comptroller. See State v. Railroad, 12 Pickle, 385; Railroad v. Williams, 17 Pickle, 149, and sees. 824-859 of the Code. 3. Charter exemption from taxation may pass under a decree of sale expressly so providing under a statute authorizing it. — Where a railroad, exempt for a certain period from taxation by a provision in its charter granted when the legislature had the constitutional power to make such exemption, is sold in a suit instituted by the State to enforce its lien or statutory mortgage, such suit being authorized by statute providing for a sale of the road, franchises, etc., and providing that all the rights, privileges, and immunities appertaining to the fran- chise under the law shall be transferred to and vested in the purchaser, the bill praying for such sale, and the decree of sale so directing, and the decree confirming the sale so vesting same in purchaser, the immu- nity from taxation passed to the purchaser, and the State is estopped to tax said road during the time the original company was exempt from taxation. Railroad v. Hicks, 9 Bax., 442, 451-458; Wilson v. Gaines, 9 Bax., 551; Wilson v. Gaines, 3 Tenn. Chy., 602, 603; Railroad V. Gaines, 3 Tenn. Chy., 608; State v. Railroad, 12 Lea, 583, 593, 597; State V. Butler, 13 Lea, 405; State, for use, v. Butler, 15 Lea, 112; State V. Railroad, 2 Pickle, 440; Memphis v. Insurance Co., 7 Pickle, 571; State V. Bank, 11 Pickle, 216. 4. Elevator of railroad exempt as warehouse, and tracks to it ex- empt also. — And where the road, with all its fixtures and appurte- nances, including the workshops, warehouses, and vehicles of trans- portation, is exempt from taxation, an elevator, though situated three hundred 3'-ards from the right of way, and placed there as a necessary depot or warehouse, on account of the extreme inconvenience, if not impossibility, of handling the river freight on the right of way, is ex- empt as a warehouse, together with the side or spur tracks, as appur- tenances necessary to connect it with the road, and the land occupied by the tracks and building; and this is true, though the tracks were laid and the elevator erected for the due operation of the road under its charter after the purchase of this road as an extension to the main line. State v. Railroad, 2 Pickle, 438. 5. Exemption in one charter not conferred in another with same rights and privileges. — But the " exemption " from taxation conferred Assessment of Eailroads, Telegraphs, Telephones. 279 upon one railroad, in its charter of incorporation, is not conferred upon another road whose charter of incorporation gives it all the " rights and privileges " that were conferred upon the former road, because these terms do not, under the constitution, include " exemptions." Railroad v. Hamblen Co., 2 Shannon's Cases, 391 (affirmed, on writ of error, in Railroad v. Hamblen Co., 12 Otto, 102 U. S., 273, 26 L. ed., 152); Wilson v. Gaines, 3 Tenn. Chy., 601 (affirmed, on appeal, in 9 Bax., 546, which was also affirmed, on writ of error, in 103 U. S., 417, 26 L. ed., 401); Railroad v. Gaines, 3 Tenn. Chy., 618 (affirmed, on appeal, by State supreme court, and also affirmed, on writ of error, in Railroad v. Gaines, 7 Otto, 97 U. S., 697, 24 L. ed., 1091); Wilson v. Gaines, 9 Bax., 546, 549-551 (affirmed, on writ of error, in Wilson v. Gaines, 103 U. S., 417, 26 L. ed., 401, but is criticized and distinguished in Tennessee v. Whitworth, 117 U. S., 139, 146, 29 L. ed., 833, 835, 836); State V. Railroad, 12 Lea, 583, 592, 593; State v. Butler, 13 Lea, 405; State V. Railroad, 2 Pickle, 440; Memphis v. Insurance Co., 7 Pickle, 566, 571-573 (affirmed, on writ of error, in Insurance Co. v. State, 161 U. S., 174, 179, 40 L. ed., 660, 662); Memphis v. Bank, 7 Pickle, 574, 589-591 (affirmed, on writ of error, in Bank v. State, 161 U. S., 186, 40 L. ed., 664); Turnpike Cases, 8 Pickle, 369, 375; State v. Bank, 11 Pickle, 216-218 (affirmed, on writ of error, in Bank v. State, 161 U. S., 164, 40 L. ed., 656, and in Insurance Co. v. State, 161 U. S., 198,40 L. ed., 669); Railroad v. Harris, 15 Pickle, 708 (writ of error to supreme court of the United States dismissed by complainant, as shown in 44 L. ed., 1221, of U. S. supreme court reports); Morgan v. Louisiana, 3 Otto, 93 U. S., 217, 223, 23 L. ed., 860, 862; Pickard v. Railroad, 130 U. S., 637, 642, 32 L. ed., 1051, 1053. 6. Railroads cannot be exempted now. — The legislature cannot, un- der our present constitution, art. 2, sec. 28, by amendment to their charters, for a consideration, contract not to tax railroad companies which are subject to taxation under the law. Ellis v. Railroad, 8 Bax., 530; Railroad v. Gaines, 3 Tenn. Chy., 480, 484; Railroad v. Gaines, 3 Tenn. Chy., 606, 607, 610; Chattanooga v. Railroad, 7 Lea, 577; Frank- lin Co. V. Railroad, 12 Lea, 524, 547, 552; Railroad v. Wilson Co., 5 Pickle, 608 (legislature cannot grant exemption from taxation further than is allowed by the constitution); Memphis v. Bank, 7 Pickle, 588 (same as last); Levee District v. Dawson, 13 Pickle, 161; Carroll v. Alsup, 23 Pickle, 293 (upon the general principle that taxation must be upon a basis of actual cash value). 7. Exemption of capital, not an exemption of property of corpora- tion; exemption for a time, an express power to tax thereafter. — The exemption forever from taxation of the capital stock of a railroad cor- poration is not equivalent to an exemption of the property into which the capital has been converted; and where there is an exemption of the " road, with all its fixtures and appurtenances, including work- 28o Tennessee Tax Digest. shops, warehouses, and vehicles of transportation," for twenty years onl}^, such exemption is equivalent to an express power to tax, after that time, the enumerated property which does not represent the cap- ital for purposes of exemption from taxation. Railroad v. Gaines, 3 Tenn. Chy., 604 (affirmed, on appeal, by State supreme court, and also affirmed, on writ of error, by supreme court of the United States, in 7 Otto, 97 U. S., 697, 24 L. ed., 1C91). ASSESSMENT OF RAILWAY CARS OF NONRESI- DENTS USED WITHIN THIS STATE FOR TAXES, AND COLLECTION THEREOF. (1901, ch. 48— effective April 20, 1901.) Section 1. What cars are subject to taxation. — All railway cars used in this State, but belonging to a person, firm, corpo- ration, or company having a residence or situs outside of this State are, ard shall be, subject to taxation under the provisions of chapter 5 of the Acts of 1897 [ante, pp. 265 to ZIJA^, and the further provisions of this act; provided, this act shall not ap- ply to passenger cars, nor to cars ov^ned by persons, firms, companies, or corporations operating lines of railways. Sec. 2. Assessment by railroad commissioners. — Such rail- way cars as are mentioned in section 1 of this act shall be as- sessed by the State tax assessors, provided by said act of 1897 [ch. 5, ante, pp. 265 to 277], now commonly known as '' rail- road commissioners." Sec. 3. Schedule to contain sworn statements of what. — It shall be the duty of the owners of any railroad in this State, when filing the schedule provided by section 2 of said act of 1897 [ante, p. 267], to file also, as a part of such schedule, a sworn statement of the average number of cars, if any, used on the road or roads of such owner, within this State, but owned by a person, firm, company, or corporation, having a residence or situs outside of this State. Said statement shall also show the name or names of the owner or owners of the cars returned in said sworn statement, the place or places of Assessment of Nonresident Railway Cars. 281 residence of such owner or owners, and the value of the aver- age number of said cars. Sec. 4. Schedule to be received by comptroller and returned to assessors ; additional evidence ; books open to owners. — The ccmptroller shall receive said sworn statement, with the sched- ule, of which it is a part, and return it with the schedule to said State tax assessors, and said assessors, in addition to said sworn statement, shall have authority to take such other proof, and obtain such other information as to the number, ownership, and value of said cars, as they may deem proper, but such additional evidence shall be reduced to writing, and an opportunity given to the owner or owners of said cars, if requested, to submit evidence as to the number, value, and ownership of said cars, and the books of the assessors shall at all times be open to inspection by such owner or owners. Sec. 5. Average number of cars to be assessed, when. — It shall be the duty of said assessors to assess said average num- ber of cars to the owner or owners thereof, at their value, on or before the first Monday in August, 1901, and biennially thereafter, so long as the owner or owners shall use such cars in this State. Sec. 6. Exception ; assessments and evidence to be filed with comptroller. — Within ten days from the first Monday in Au- gust of any year, in which an assessment shall be made, as herein provided, the owner or owners of said cars may appear and file exceptions to the assessment thereof, and at the expi- ration of said period of ten days the assessors shall rule on the exceptions, and change the assessment if they shall deem proper, and on or before the first Monday in September, next following, the assessors shall file the assessment with the comptroller, together with all evidence relating to the same. Sec. 7. Assessment to be delivered to board of equalization ; their action. — The comptroller shall deliver said assessment and evidence to the chairman of the board of equalization. 282 Tennessee Tax Digest. provided by section 12 of said Act of 1897 [ante, p. 274], within three days after receiving the same, and the board of equalization shall proceed to examine the assessment and evi- dence and shall increase or diminish the valuation of the cars, if they shall see proper; and before acting on the assessment they may require the production of any additional evidence, and shall consider the same in fixing the value of the property, and the assessment shall not be deemed complete until final action is taken thereon by the board of equalization. See sec. 12 of said act, and notes thereunder, ante, p. 274. Sec. 8. Certificate of valuation to be made, when ; final and conclusive. — On or before the third Monday in October, next following the making of any assessment, as aforesaid, said board of equalization shall certify to the comptroller the valu- ation of any property assessed under the provisions of this act ; and the action of the board of equalization, in fixing such valuation, shallbe final and conclusive; and the value so fixed shall be the taxable value of the property, and the taxes there- on shall be paid. Sec. 9. Comptroller to notify owners and certify to clerk. — As soon as the comptroller shall have received said valuation from the board of equalization, he shall ascertain the amount of taxes due the State from the owner of the property assessed, and notify the owner of the same, by letter or otherwise, and he shall certify to the county court clerk of each county, in which any of such property is used, the amount to be taxed in his county, for county purposes. See Acts 1897, ch. 5, sec. 14, ante, p. 275. Sec. 10. Taxes a first lien. — The taxes so assessed in behalf of the State and counties shall be a first lien upon the prop- erty from the 10th of January of the year for which the taxes Assessment of Interurban and Street Eailroads. 283 are assessed, and they shall be due and delinquent, as all other ad valorem taxes. See Acts 1907, ch. 602, sec. 31, and notes thereunder, ante, pp. 176- 178, and also Acts 1897, ch. 5, sec. 15, ante, p. 276. Sec. 11. Comptroller to collect State tax. — The taxes so as- sessed on behalf of the State shall be collected by the comp- troller, and paid into the State treasury as soon as received by him ; and if the same shall be delinquent, he shall issue dis- tress warrants against the owner of any such property to any sheriff in the State, whose duty it shall be to collect the same and make a return within thirty days. See Acts 1897, ch. 5, sec. 16, ante, p. 276. Sec. 12. County's tax collected as other county taxes. — The taxes due to any county shall be collected as any other county taxes may be collected by law, 'and at the rate fixed by such county. Sec. 13. All of the provisions of chapter 5 of the Acts of 1897 [ante, pp. 265 to 277], so far as appropriate, and not in confiict with the provisions of this act, shall be applicable to the assessment and collection of taxes on said cars. See Acts 1897, ch. 5, sec. 17, ante, p. 276. ASSESSMENT OF INTERURBAN RAILROAD AND STREET RAILROAD PROPERTIES FOR TAXES, AND COLLECTION THEREOF. (1905, ch. 513— effective April 17, 1905.) Section 1. Assessment to be made by railroad commission- ers acting as State tax assessors. — The State tax assessors, created by chapter 5, of the Acts of the general assenibly of 1897, shall have, and are hereby given, authority to assess for taxation for State, county, and municipal purposes all in- terurban railropLd and street railroad properties in the State of 284 Tennessee Tax Digest. Tennessee ; and no assessment of such properties shall be made in any other manner or by any other officer except and as pro- vided in this act. Sec. 2. Assessment to be made biennially. — The State tax assessors shall assess interiirban and street railroad properties biennially, and at the same time that they assess railroad, tel- egraph, and telephone properties. Sec. 3. Schedules to be filed with comptroller showing what. — Every person or corporation owning, leasing, or operating interiirban and street railroad properties, including electric light and power properties, when owned or operated in con- junction with street railroad properties, shall file with the comptroller of the State biennially on or before the first day of April, commencing with the year 1905, a schedule or sched- ules stating and giving the following facts and information, viz.: A list or statement of ^11 his or its property — real, per- sonal, and mixed — owned or leased, setting forth therein the length in miles of the entire roadbed, switches, and sidetracks, showing the number of miles in each county and the number of miles in each city or incorporated town, the value of the whole, the amount of .capital stock, if owned by a corporation, the bonded debt, the gross annual receipts of the preceding fiscal year, the number of cars, their classes and value, the location, description, and value of all car sheds, transfer sta- tions, power houses, and other real estate, and all real, per- sonal, and mixed property belonging to the person or company owning said railroad, if a part of and used in connection there- with, together with its value. Sec. 4. Affidavit to schedule. — Said schedule shall be veri- fied by the affidavit of the owner of said property; and if said owner be a corporation, the affidavit shall be made by the pres- ident or secretary thereof. Sec. 4a. Failure to file schedule waives right to contest as- sessed value, and incurs penalty of $1,000. — Said schedule shall Assessment of Ixterurban and Street Railroads. 285 be filed with the comptroller of the State within the time above prescribed ; and the owner of any such property refusing or failing to file such schedule shall be deemed to have waived the mode and manner of ascertaining the value of such prop- erty, and shall not be permitted to be heard in opposition to the value fixed upon such property by said State tax assessors, and shall, in addition, be liable to a penalty of $1,000. Sec. 4b. Attorney-general to sue for penalty.— It shall be the duty of the attorney-general of the State to sue for and collect the same [the penalty of $1,000 imposed in section 4a] before any court of competent jurisdiction, in the same manner as any other debt, penalty, or forfeiture is now collected by the law. Sec. 5. Assessors to receive schedules from comptroller, and ascertain value. — Said State tax assessors shall receive from the comptroller the schedules, and it is hereby made the duty, of the comptroller to deliver the same to the State tax as- sessors, and they shall immediately proceed to ascertain the value of said property for taxation. Sec. 6. Value to be ascertained in what manner. — The said State tax assessors, in arriving at the valuation of said prop- erty for taxation, shall have in view, and look to the capital stock of the company, the corporate property and franchises, the gross receipts, the expenditures for betterments, improve- ments, and repairs, the market value of the shares of the stocks and bonds, and all other facts that may throw light upon and show the value of said property to be assessed. Sec. 6a. Power to examine witnesses, books, etc., to ascer- tain value. — To ascertain these facts [stated in section 6 above], the State tax assessors are hereby invested with power to summon before them any person or persons, and call for any books, administer oaths, and examine any such person or books touching any matters deemed necessary to enable them to arrive at the correct value of such property ; and they 286 Tennessee Tax Digest. may issue summons to any county in the State, to be exe- cuted by the sheriff of such county. Sec. 6b. Perjury to testify falsely. — Any person so called on to testify shall be guilty of perjury if he shall testify falsely. Sec. 6c. Misdemeanor to fail to attend as witness ; fine and imprisonment. — Any person failing to attend when summoned shall be guilty of a misdemeanor, punishable by a fine of $100 and thirty days in jail. Sec. 7. Distributable property defined; valued; exemption of $1,000 allowed; apportioned, how. — The roadbed, rolling stock, franchises, choses in action, and personal property of a railroad having no actual situs shall be known as distributa- ble property and shall be valued separately from the other property; and after ascertaining the total value of such dis- tributable property, wherever situated, and after having de- ducted from this value $1,000, said assessors shall divide the re- mainder by the number of miles of the entire length of the road, and the result shall be the value per mile of such dis- tributable property for the purpose of taxation ; and the value per mile of such distributable property shall be multiplied by the number of miles in this State, and the product thereof shall be the sum to be assessed against such property for State pur- poses ; and the value per mile so ascertained shall be multi- plied by the number of miles in each county or incorporated city, and the product shall be the amount to be assessed upon such property by said counties and incorporated towns, respec- tively. Sec. 8. Localized property defined. — Transfer stations, car sheds, power houses, and real estate shall be valued separately as localized property. Sec. 9. Minutes to be made by secretary and signed by as- sessors. — It shall be the duty of the secretary of the said as- sessors to transcribe into a well bound book the entire proceed- Assessment of Interurban and Street Railroads. 287 ings of said assessors, to be approved and signed by them each day. Sec. 9a. Secretary to preserve reports, documents, and proof. — The secretary shall carefully preserve and file away all re- ports, documents, and proof taken and used by said assessors. Sec. 10. Evidence and information in addition to schedules; in writing; records to be open.— Said assessors shall, in addi- tion to the schedules hereinbefore required, take such addi- tional proof and require such additional information of the value of any property to be assessed by them as may be deemed proper ; but such additional evidence shall be reduced to writing, and an opportunity afforded, if desired, to the owner of any property to submit additional evidence or counter evidence to that acquired by said assessors, and the records of the assessors shall at all times be opened [open] to inspection to the owner or owners of any property assessable under the provisions of this act. Sec. 11. Assessments to be completed, when; exceptions made and heard, when; assessments and records to be filed with comptroller, when. — Said assessments shall be completed on or before the first Monday in August ; and within ten days from the first Monday in August, the owners of any property assessed may appear and file exceptions to said assessments, together with such evidence as they may desire to submit as to the value of the property assessed', and at the expiration of said ten days said assessors shall reassemble and examine such additional evidence and exceptions as may have been filed and change the valuation accordingly ; on or before the first Monday in September said State tax assessors shall file with the comptroller the assessments made by them, together with all other records of every kind and character. Sec. 12. Board of equalization constituted. — The governor, treasurer, and secretary of State are hereby constituted a board 288 Tennessee Tax Digest. of equalization, of which the governor shall be chairman, and the secretary of State, secretary. Sec. 12a. Comptroller to deliver assessments and records to governor. — Within three days after the comptroller shall have received the assessments and records from said State tax as- sessors, he shall deliver the same to the governor. Sec. 12b. Duties and powers of board of equalization; ad- ditional evidence required. — Said board of equalization shall proceed to examine said assessments, so made by the assessors, and they are hereby authorized to increase or diminish the valuation placed upon any property valued by said assessors, and are further authorized to require of said assessors any additional evidence touching any one or more of the properties assessed, and shall consider such additional evidence so fur- nished by said assessors in fixing the correct value of any property so assessed. Sec. 12c. Assessment not complete until when. — And said assessments shall not be deemed complete until corrected and approved by said board of equalization. Sec. 12d. Governor may call assessors together. — And the governor is hereby authorized to call together said assessors at any time tO' perform the duties imposed upon them. See sec. 18, post, p. 290. Sec. 13. Beard of equalization to certify assessment to comp- troller, when. — On or before the third Monday in October said board of equalization shall certify to the comptroller the valuation fixed by it upon each property assessed under this act. Sec. 13a, Valuation fixed by board of equalization is con- clusive and final. — The action of the board of equalization, in fixing the valuation upon such property, shall be conclusive Assessment of Interurban and Street Railroads. 289 and final, and the valuation so fixed shall be assessed against said property and the taxes due thereunder be paid. Sec. 14. Comptroller to notify owners of amount of State taxes. — As soon as the comptroller shall have received said valuations from the board of equalization, he shall ascertain the amount of taxes due the State from the ov^ner of each property assessed, and notify the owner of same, by letter or otherwise. Sec. 14a. Comptroller to certify assessed values to county court clerks and mayors. — The comptroller shall certify to the county court clerk of each county in which any of such prop- erty lies the amount to be taxed in said counties, respectively, for county purposes, and likewise to the mayor of any incorpo- rated town the amount to be taxed by such town. Sec. 15. Lien; taxes due and delinquent, when. — The taxes so assessed in behalf of the State, counties, and cities shall be a first lien upon the property from the 10th of January of the year for which the taxes are assessed, and they shall be due and delinquent as any other ad valorem taxes. Sec. 16, Comptroller to collect State taxes; distress war- rants; sale of property. — The taxes so assessed on behalf of the State shall be collected by the comptroller and paid into the State treasury as soon as received by them [him] ; and if the same shall become delinquent, he shall issue distress war- rants against the owner of any such property to any sheriff in the State, whose duty it shall be to collect the same and make a return thereof within thirty days ; and if the taxes shall not be collected by the sheriff, it shall be the duty of the comp- troller to advertise said property for a period of thirty days by weekly publications in a newspaper published in the city of Nashville, Tennessee, and at the expiration of such time sell at the courthouse door said property for cash, free from the equity of redemption, and execute to the purchaser a deed or deeds to the property so sold, and after reserving the ex- 10 290 Tennessee Tax Digest. penses of such sale and the taxes, together with six per cent, interest from the time the same became delinquent, hold the remainder subject to the order of the owner of such property so sold. Sec. 17. City and county taxes collected as other taxes, and at same rate. — The taxes due to any county or city shall be collected as any other county or city taxes may be collected by law, and at the rate fixed by such county or city. Sec. 18. Governor may convene State tax assessors, when; assessments, reassessments, and back assessments of railroads, telephones, and telegraphs; board of equalizers to act. — If at any time it shall appear to the satisfaction of the governor of Tennessee that any street railroad is inadequately assessed or that its property has been omitted from taxation, or any new line has been constructed, it shall be his duty, and he shall have the power, to convene the said board of assessors to make the proper assessment, and they shall have the power to do so, and their assessment shall go to the board of equal- izers upon appeal upon the. record as is provided in cases of assessment in the first instance. The said board of equalizers shall examine and act upon such record as soon as practicable, and certify their final action to the comptroller, the correction of the taxes so assessed to be then proceeded with according to the regular course, and neither the comptroller of the treas- ury nor any other officer than said board of assessors shall have the power or authority to back assess or assess any rail- road, telephone, or telegraph company. COLLECTION OF TAXES THAT ARE A LIEN ON LAND SOLD UNDER DECREE OF COURT. 969. 806. In case of land sales under decree of court. — When- ever rea;l estate is sold under a decree of any court in the State, it shall be the duty of the judge of said court, before the sale is confirmed to the purchaser, to have a reference made to the Collection of Taxes ox Land Sold Under Decree. 291 clerk or clerk and master, to ascertain if, upon the day of sale, there were any taxes due and unpaid which were a lien upon said real estate ; and if it is found that there were taxes that were a lien upon the real estate upon the day of sale, a decree shall be entered in the cause stating the amount of taxes, and directing the clerk and master or clerk to pay said taxes out of the first money collected from the sale of the. said real estate. (1871, ch. 68, in Code.) 1. Reference at any time while funds in court. — The reference may be had after confirmation of sale, at any time while the funds are under the control of the court, out of which the amount of taxes found to be due at the time of sale shall be paid. Williams v. Whitmore, 9 Lea, 270-275; State v. Hill, 3 Pickle, 639-642; Brown v. Timmons, 2 Gates, 154. 2. Lien continues unless taxes paid. — Where no reference is made lo ascertain the taxes, and no order is made for their payment out of the purchase money, the lien will continue against the property. State V. Hill, 3 Pickle, 641. 3. But where ordered paid under this statute, land relieved of lien. — Where the taxes are ascertained by the reference, and an order is made for their payment out of the purchase money, the lien is trans- ferred from the realty to the fund, and the State must look to the fund and its officers for the taxes. State v. Hill, 3 Pickle, 641, 642. 4. Tax lien is not lost by sale of land under decree. — Tax lien is not lost by sale of land under decree, for it is made a prior charge and lien, and overrides all liens, mortgages, and incumbrances of whatever kind. State v. Hill, 3 Pickle, 638, 640; Dunn v. Dunn, 15 Pickle, 609; Colligan v. Cooney, 23 Pickle, 216. 5. Taxes paid out of proceeds arising from foreclosure of mortgage on lands upon court's own motion. — The taxes due on mortgaged lands at the date of a foreclosure sale made under decree of court will be ascertained by proper reference, and ordered paid out of the proceeds of the sale, upon the court's own motion, without any intervention of the State, county, or city entitled to the tax. Dunn v. Dunn, 15 Pickle, 612, 613. 6. State, county, and city not concluded as to taxes when not par- ties to suit; tax ordered paid without their intervention. — Where the State, county, and city are not parties to the suit, they will not be concluded by anything done or omitted to be done therein, as to the 292 Tennessee Tax Digest. taxes due them, without some opportunity to assert their claims. State V. Hill, 3 Pickle, 638, 641. But the taxes may be ordered paid without the intervention of the State, county, and city. Dunn v. Dunn, 15 Pickle, 612, 613. 7. Taxes paid by purchaser recovered from beneficiary of purchase money after case is out of court, when. — The purchaser of land under a decree of court is entitled to have the property relieved of all incum- brances for unpaid taxes that are a lien thereon; and where, after the confirmation of the sale and the vestiture of the title in the purchaser, the purchase money notes are delivered, by the clerk and master, to the beneficiary entitled to whole proceeds thereof, who was the vendor enforcing the lien, the purchaser, in a settlement with him, is entitled to have the purchase money abated and the notes created, with the amount of such taxes; and where such beneficiary has been overpaid, the purchaser is entitled to recover the same from him. Brown v. Timmons, 2 Gates, 148, 151, 154, citing Childress v. Vance, 1 Bax., 146, and Williams v. Whitmore, 9 Lea, 262. NOTICE TO TAX COLLECTORS IN JUDICIAL SALES. (1897, ch. 9— effective February 12, 1897.) Section 1. Notice to tax collectors under reference to ascer- tain taxes. — In ascertaining the taxes due under a reference as required by said act [section 969 of the Code], the clerk or clerk and master shall issue to each of the officials charged with the collection of any taxes that might or could be a lien on said property, a statement giving the style and number of the cause, a description of the property sold, and the name of the party or parties out of whom the title is or is to be di- vested ; whereupon each of said officials shall certify to said clerk or clerk and master an itemized statement of the taxes, interest, penalties, and cost that are at that date a lien upon said land in his hands for collection, from which statement the clerk or clerk and master shall report to the court the amount of taxes, interest, penalties, and cost that is a lien on said land. Same rule as before statute. — Before the enactment of this statute it was held to be the duty of the clerk and master, upon a reference being made to ascertain the taxes accrued on the land sold, to give notice thereof to the collectors of taxes within the county. State v. Hill, 3 Pickle, 641. Fees and Taxes Collected by Secretary of State. 293 Sec. 2. Fees of clerk or clerk and master. — The only fees for making a tax report under the provisions of this act shall be $1.50 to the clerk or clerk and master for issuing said state- ment, fihng the certificate of said officials, making the clerk's or clerk and master's report, and filing the same. FEES AND TAXES TO BE COLLECTED BY SECRETARY OF STATE. FEES TO BE CHARGED AND COLLECTED. (1899, ch. 2— effective February 25, 1899.) Section 1. Secretary of State's fees. — From and after the passage of this act, the following fees shall be charged in the office of the secretary of State, to wit : , . . (1) For commission of each notary public $ 3 00 (2) For commission of each commissioner of deeds. . 10 00 (3) For commission of each appointee of the gov- ernor 5 00 (4) For each requisition 5 00* (5) For each warrant on a requisition 3 00 (6) For granting and recording each domestic char- ter of incorporation having a capital stock 10 00 (7^ For each certified copy of a domestic charter of incorporation 10 00 (8) For each certified copy of a foreign charter of in- corporation 20 00 (9) For each abstract of charter of a foreign charter of incorporation 20 00 (10) P'or filing each charter of a foreign corporation. . . 20 00 (11) For attaching the great seal to any document (ex- cept those herein named and pardons) 2 00 (12) For filing articles of consolidation of corporations (in addition to tax) 25 00 (13) For filing other articles of agreement between corporations 25 00 (14) For each charter or certificate of a municipal cor- poration 50 00 (15) For automobile registration and certificate (1905, ch. 173; sec. 1) 2 00' 294 Tennessee Tax Digest. (16) For certificate of transfer of automobile (1905, ch. 173, sec. 1) 1 00 - Sec. 2. Fees for charters for general welfare. — On every charter of incorporation granted for the general welfare of so- ciety, and not for individual profit, except charters granted for purely religious or educational purposes, there shall be charged in said ofiice a fee of twenty-five dollars ($25). Sec. 3. Exceptions. — This act shall not apply to commis- sions of justices of the peace, judges, or chancellors, nor to the commissions, certificates of election, or appointment of any other constitutional officer, nor to the commissions or certifi- cates of appointment of any officer who shall serve without compensation. Sec. 4. Not repealing existing laws. — This act shall not be construed as repealing any charge made in said office under existing laws for any service not specified herein. Sec. 5. Not repealing law making fees State revenue. — This act shall not be construed as amending or repealing any exist- ing law under which the fees paid in the office of the secretary of State become revenue. SAME. (1899, ch. 209— effective April 7, 1899.) Section 1. Fees for amendments of charter. — The following fees shall be charged in the office of the secretary of State for the following services, to wit : For granting and registering any amendment of the charier of any corporation incorporated under chap- ter 142 of the Acts of 1875, or under any amendment thereof, unless it be a corporation for purely educa- tional or religious purposes $ 10 00, For granting and registering any amendment of the charter of any corporation chartered by any act of the general assembly, or by any chancery court 100 00- Fees and Taxes Collected by Secretary of State. 295 For granting and filing any amendment of any charter of incorporation not included in either of the forego- ing provisions, except amendments of charters granted for purely educational or religious pur- poses 10 00 Fee for amendment of legislative charters of purely educational and religious corporations. — For granting and registering an amendment of the charter of a corporation for purely educational or religious purposes, chartered by any act of the general assembly, the fee to be charged is only three dollars, as provided in Code, sec. 6367, subsec. 7 (S.), and not the fee of one hundred dollars, as above provided. Opinion of Attorney-General Cates. Sec. 2. Not to repeal Acts 1899, chapter 2.— This act shall not be construed as amending or repealing an act passed Jan- uary 20. 1899. and approved February 25, 1899, fixing a sched- ule of fees for the office of secretary of State, but only as pre- scribing additional fees. Sec. 3. Not to repeal law making fees State revenue. — This act shall not be construed as amending or repealing any exist- ing law under which the fees of said offtce become revenue. Privilege tax for charter, amendment, and consolidation of corpo- rations. — For the amount of the privilege tax on charters of incorpo- ration or amendments thereto, and on consolidation of corporations, see Acts 1907, ch. 541, sees. 9 and 10, ante, pp. 80, 81.— Ed. CODE PROVISIONS AS TO FEES STILL EXISTING IN ADDITION TO THE FOREGOING FEES AND AS MODIFIED BY THE FOREGOING STATUTES. 6367 (4529) 5280. Fees of secretary of State.— The secretary of State is entitled to demand and receive and shall charge for the following services the fees annexed, to be collected and pa"d into the State treasury (1893, ch. 6; 1899, chs. 2 and 209.). 1. [Subsection 1 is repealed by Acts 1899, ch. 323.] 2. i'or all copies, transcripts, or records made, for every hundred 'words (1859-60, ch. 77, sec. 2) $ 10 296 Tennessee Tax Digest. 3. [Subsection 3 is repealed or suspended by Acts 1899, ch. 2, sec. 1, subsec. 11, as above shown.] 4. For each certificate, without seal of State 25 5,6. [Subsections 5 and 6 are repealed or suspended by Acts 1903, ch. 416.] 7. For registering each charter of incorporation, or amendment thereto, and giving his certificate of reg- istration under the great seal of the State (sees. 2026, 2032, 2039) 3 00 Applies only to purely educational and religious corporations. — This subsection applies only to corporations for purely educational and religious purposes, and is repealed or suspended as to all other corpo- rations by Acts 1899, chs. 2 and 209, above shown. 8. [Subsection 8 is repealed or suspended by Acts 1899, ch. 2, sec. 1, subsecs. 9 and 10, as above shown.] 9. For each copy of township or other plats from the maps in his office 50 10. [Subsection 10 is repealed or suspended by Acts 1899, ch. 2, sec. 1, subsec. 2, as above shown.] 11. [Subsection 11 is repealed by Acts 1899, ch. 2, sec. 5, as above shown.] 12. [Subsection 12 is repealed or suspended by Acts 1899, ch. 2, sec. 1, subsec. 14, as above shown.] 6368 (4529c) 5281. No fee for signing and sealing commis- sion for State or county officers. — The secretary of State shall not be entitled to any fee for signing and affixing the seal of the State to any commission for State or county officers (1869- 70, ch. 102, sec. 2 ; 1899, ch. 2, sees. 1, 3, and 4). Taxation of Forp]ign Corporations. 297 TAXATION OF FOREIGN CORPORATIONS FOR PRIVILEGE OF COMING INTO THIS STATE TO DO BUSINESS. (1903, ch. 239— effective April IS, 1903, substituted for Acts 1899, ch. 431.) Section 1. Coming into this State is a privilege. — The com- ing into this State of any corporation, association, or joint stock company chartered or incorporated under the laws of any other State or country, for the purpose of doing business here, is hereby declared and made a privilege. Sec. 2. Rate of taxation for filing charter. — Every corpora- tion, association, or joint stock company chartered or incorpo- rated under the laws of any State or country, and having a capital stock, shall pay into the office of the secretary of State for use of the State, upon filing a copy of its charter as re- quired by chapter 3\ of the Acts of 1877 and chapter 122 of the Acts of 1891 [see Code, sections 2545-2548], a tax upon its capital stock as follows, to wit : Companies of $100,000 and less . . .$ 50 00 Companies over $100,000 and not more than $250,000. . 100 00 Companies over $250,000 and not more than $500,000. . 150 00 Companies over $500,000 and not more than $1,000,000. 200 00 Companies over $1,000,000 and upward 250 00 Provided, that [if] any company chartered under the laws of arother State desires to locate its principal office and do all of its business in and from Tennessee, and have all or its main property holdings in Tennessee, it shall then pay a privilege tax of one-tenth of one per centum on the authorized capital stock just as domestic corporations are now required to do; and provided, also, that insurance companies shall be credited by the amount of fees paid to the insurance commissioner upon entering the State to do business. Sec. 3. Secretary of State to report and pay over taxes. — It shall be the duty of the secretary of State to report and pay 298 Tennessee Tax Digest. to the State treasurer, quarterly, all taxes collected under this act. Foreign corporations not required to register abstracts of their charters in counties. — In the case of the United States Saving & Loan Co. V. Miller, 47 S. W. Rep., 17, the court of chancery appeals held that it was not required that foreign corporations cause abstracts of their charters to be recorded in the office of the register of each county in which they propose to carry on their business or to acquire lands, as provided in the last sentence of section 2546 of the Code. This case was affirmed orally by the supreme court, December 18, 1897. So, this mean's that said sentence is not the law. The compiler had serious doubts about this being the law, but gave the existence of the law the benefit of the doubt by compiling the same as the law, so that the requirement would not be overlooked, if it were the law. But see Insurance Co. v. Craig, 22 Pickle, 632; Harris v. Water & Light Co., 24 Pickle. 246. CRIMINAL COSTS AND COMPENSATION OF CERTAIN OFFICERS. GENERAL RULES IN REGARD TO THE COMPENSATION OF OFFICERS CONTAINED IN THE CODE. 6352 (4517) 5269. Fees allowed.— No officer is allowed to demand or receive fees or other compensation for any service further than is expressly provided by law. See Code, sec. 7583, and notes thereunder, post, p. 306. 6353 (4518) 5270. Extortion by officer; penalty; misde- meanor in office. — If any officer demands or receives any other or higher fees than are prescribed by law, he is liable to the party aggrieved in the penalty of fifty dollars, to be recovered before any justice of the peace, and is also guilty of a misdemeanor in office. 6714 (4810) 5604. Extortion by officer is a misdemeanor. — It is a misdemeanor for any person knowingly to demand and receive of another, for performing any service or official duty for which the fee or compensation is established by law, any Criminal Costs — Compexsatiox of Officers. 299 greater fee or compensation than is legally allowed or pro- vided. 1. " Extortion " defined.— Extortion is the taking, by color of an office, money or other thing of value that is not due, before it is due, or more than is due. Williams v. State, 2 Sneed, 162. Extortion and theft stand upon the same footing, except that extortion is accom- panied and aggravated by perjury. Fields v. State, M. & Y., 170. 2. Extortion to take fees not due. — No fees are due until the serv- ice is performed [unless otherwise provided by law]; and it is extor- tion in any officer to take money or other thing of value, by color of his office, where he has not done service for which the fee is al- lowed. Williams v. State, 2 Sneed, 162. 3. Demanding and receiving unearned commissions is extortion. — The commissions given by statute to collecting officers are intended as compensation for services rendered; and it is, therefore, extortion in a constable to demand and receive commissions for collecting money on execution in his hands when the defendant had previously paid the money' due upon the execution to the plaintiff. Cross v. State, 1 Yer., 261; Barnes v. Jackson, 2 Sneed, 416, 419; Arnold v. IDinsmore, 3 Cold., 238 (distinguishing this case as inapplicable, where the plaintiff in the execution purchases land sold thereunder, and hold- ing the officer entitled to his commissions in such case). See Boyd V. Davis, 2 Shannon's Cases, 558; Shaw v. Armstrong, 2 Heis., 420 (allowing sheriff* commission upon amount realized by compromise and settlement of -an attachment suit after levy under Acts 1866-67, ch. 39, sec. 2, repealed by Acts 1881, ch. 33) ; Harris v. Petigrew, 5 Lea, 597 (but commissions not allowed sheriff for levy of attachment in suit to enforce vendor's lien where the land is sold by clerk and master under decree of the court). But by section 6406 of the Code, the plaintiff is liable to officer for commissions on the amount received on judgment after execution is issued. 4. No penalty or extortion in charge for unofficial work, when. — Where an officer charges or demands any other or higher fee, or charges compensation other than such as is fixed by law, then he is guilty of extortion, and is liable in the penalty imposed by this stat- ute. But the provision of this statute imposing the penalty is only applicable where fees are fixed by law. Where the official is not re- quired by law to perform the service, and no fee is fixed for his com- pensation, though the fee be fixed for such service by another official for a particular purpose, the rendition of the service and the compen- sation therefor are subjects or matters of contract, not regulated by law. Garvin v. Glisson, 6 Pickle, 207, 211. 300 Tennessee Tax Digest. 5. Decision of court will protect officer. — If an officer is in doubt about a question of compensation, he may apply to the courts for a decision, and the decision will protect the officer acting under it, and prevent suits for penalties and indictments for extortion. See Code, sec. 6359. 6. Honesty of purpose will not excuse. — An honest belief that the defendant v/as entitled to the fees will not excuse him from criminal prosecution. State v. Merritt, 5 Sneed, 69; State v. Critchett, 1 Lea, 272; Plyley v. Allison, 5 Gates, 506. The officer's good faith and hon- esty of purpose in demanding and collecting illegal fees is no defense in a civil suit to recover the penalty for extortion, reserving the ques- tion whether in a criminal case the good faith would excuse the officer. Plyley v. Allison, 5 Gates, 500. 7. Officer takes fees at his peril. — Every officer must beware that he takes no compensation for services • not sanctioned by law. The officer collects costs at his peril, and for each and every item must be able to put his finger upon the law authorizing him to collect the costs so charged. State v. Merritt, 5 Sneed, 69, 70. 8. Officer's return not conclusive. — The return of the officer is not conclusive for the purpose of shielding a guilty officer for extorting money as fees which he has not earned or to which he is not entitled under the law. The truth of the return is directly in issue by an in- dictment for extortion. Williams v. State, 2 Sneed, 162, 163; Gardner V. Barger, 4 Heis., 671. 9. Municipal officer guilty of extortion. — The officer of a municipal corporation who demands and receives any greater fee for perform- ing any duty than is allowed by the ordinance of the corporation, is guilty of extortion. State v. Gritchett, 1 Lea, 272. 10. Removal from office for extortion without indictment. — Re- moval of constable from office for extortion without previous convic- tion, indictment, or trial by jury. Fields v. State, M. & Y., 168, 170- 176; Smith v. State, 1 Yer., 231; Davis v. State, 8 Pickle, 642; Wall, Ex parte, 17 Otto, 107 U. S., 284, 27 L. ed., 560. See Hardin Go. v. Hardin, Peck, 291; Sevier v. Washington Go., Peck, 334; Tipton v. Harris, Peck, 414; Evans v. Glaibourne Go., 3 Hay., 26. 6354 (4519) 5271. List of fees.— The clerks of the several courts, sheriffs, justices of the peace, and other ofificers en- titled to fees under the provisions of law, are required to keep posted up in a conspicuous place in their respective offices, a complete list of all the fees allowed them by law, and shall also Criminal Costs — Compensation of Officers. 301 keep a copy ready to be produced on the application of any person demanding to see the same. (1796, ch. 7, sec. 2.) 6355 (4520) 5272. Bill of costs.— Such officers shall also, on demand, make out a bill of iees and costs in any case or mat- ter, stating each item distinctly, without charge therefor. But see Code, sec. 457, and note; sec. 6385, subsecs. 9, 18; sec. 6387, subsec. 7. 6356 (4521) 5273. No fees until service performed. — No offi- cer is entitled to demand and receive fees allowed by law until the duty or service for which they are granted is performed, unless otherwise expressly provided by law. No fees till duties performed, when. — In cases where the legislature has made the performance of any duty pertaining to an office a con- dition upon which fees or salaries are to be paid, the officer is not en- titled to demand his fees until such duties are performed. Maynard V. State, 9 Bax., 225; State v. Bachman, 6 Lea, 651; Keys v. State, 7 Lea, 409. 6357 (4522a) 5274. Commissions on costs.— The sheriffs and other collecting officers of this State shall be allowed the same fees for collecting and paying over costs as they are allowed by law for the collection of other moneys. (1859-60, ch. 21.) 6358. 5275. Except in their own favor. — They shall not be allowed to charge and receive commissions on costs in their favor. (lb.) 6359 (4523) 5276. Court to decide questions under law of compensation. — It is the duty of the several courts of the State to decide, upon application by the officer entitled to com- pensation, any question arising under the law, and such de- cision will protect the officer acting under it. Supreme court will determine question of compensation of clerk of lower court for making second transcript; rescission of previous or- der. — The supreme court will determine the question whether the clerk of the lower court will be required to file a second transcript of the record, without the payment of his fees therefor, in obedience to 302 Tennessee Tax Digest. a previous order, without notice to him, awarding a certiorari requir- ing him to lile a new transcript; and where it appears that a proper transcript was filed by the clerk and lost by the counsel, the court will set aside such order as improvidently granted, and will not require the second transcript to be filed without the payment of the clerk's compensation therefor. Telegraph Co. v. Ordway, 8 Lea, 558, 559, 563. 7584 (5562) 6434. Fees. — If any of the duties in this and the corresponding title of Part HI specified, are performed by other officers than those therein named, whose duty it is to perform the same, such officers are entitled to the same fees, and in the same manner, as there named. (Alabama Code of 1852, sec. 3998.) • See Code, sec. 6352, et seq. ; sec. 4923, et seq. Fees not allowed city officers with fixed salaries, when. — Where the recorder and policemen of a city are invested with the jurisdiction and power of justices and constables, respectively, with fixed sala- ries, they are not entitled to receive, in addition thereto, the fees fixed by law for justices and constables for like services. Johnson v. State, 10 Pickle, 500. 7565 (5563) 6435. Same. — The provisions of the preceding section do not apply to any of the judges or chancellors of the State. (Id., sec. 3999.) 7585 (5564) 6436. No fees on escape. — No sheriff, jailer, or other ofificer charged w'ith the custody of the prisoner is en- titled to any allowance for keeping or removing such prisoner, under the provisions of this Code, if such prisoner escapes from the custody of such sheriff or jailer, or from the officer during removal. (Id., sec. 4001.) 7587. 6437. Fees allowed on escape, when. — Where prisoners make their escape from jail by means of force, stratagem, or other fraudulent device, and reasonable care and diligence were used by the jailer to prevent said escape, or to secure such prisoner or prisoners in jail, the said jailer shall be entitled to his fees as such jailer; provided, it shall be clearly made [to] appear to the satisfaction of the judge of the circuit court in Criminal Costs — Compensation of Officers. 303 the county where said escape was made or the cause pending, that said escape was effected in the. manner and under the cir- cumstances aforesaid, and that the said jailer had used the proper efforts on his part to recover the said prisoner or pris- oners. (1859-60, ch. 83, sec. 1.) See 8 Yer., 171. 7588. Judge to certify costs; officers included. — In all cases falling within the provisions of the last section, it shall be the duty of sa'd judge to certify said claim for payment as in other bills of cost ; and the sheriff, or other officers, having custody of such prisoner or prisoners, shall have all the benefits of this and the last section. (Id., sees. 2, 3.) 7589 (5565) 6438. Clerk guilty of neglect is not entitled to fees, when. — No clerk is entitled to any fees in any State case, when such fees have become chargeable to the State or county in consequence of any omission of his duty or clerical defect in the record. (1845-46, ch. 95, sec. 1.) See Code, sec. 6394, post, p. 305. 7590 (5566) 6439. No fee to attorney in like case. — No attor- ney-general is allowed a fee in any criminal prosecution, when the State or county has become chargeable with the cost in consequence of any defect in the indictment or omission of duty on the part of such attorney. (Id., sec. 2.) See Code, sees. 6379 and 6380. District attorneys receive salaries, and are not affected by statute disallowing fees for defects in indictment or for omission of duty. — By Acts 1897, ch. 41, compiled herein, post, p. 329, district attor- neys-general receive salaries; and their fees, collected from defend- ants and prosecutors paying costs,' belong to the State. Since said statute, the district attorneys-general are not affected by the provi- sions of section 7590 of the Code. 7591 (5567) 6440. When allowed on return of process " not found."— No fee is allowed the sheriff or other executive of!i- 304 Tenn-essee Tax Digest. cer upon the return of any kind of criminal process or subpccna " not found," unless he make oath before the clerk that he has been to the residence of the person mentioned in said process, or at the place where he last resided in that county, or that such person has not for twelve months resided in the county. (1843-44, ch. 215, sec. 10, 12.) 7592 (5568) 6441. Costs where several defendants.— It is the duty of the district attorney to include in one bill of indict- ment or presentment all persons engaged in -the same ofifense, and the costs shall be taxed as one suit, unless the defendants sever in their trial, and, in that event, the costs are taxed as two or more suits, according to the nature of the case. (Id., sec. 11.) Provision directory; defendant can take no advantage of its viola- tion. — This provision to include in one indictment all persons engaged in the same offense is directory to the district attorney, and should be pursued, if practicable; but if not pursued, it affords no matter in defense to one of several offenders who is indicted alone. State v, Davis, 2 Sneed, 273. 7593 (5569) 6442. Bill of costs against State or county au- dited by judge and attorney-general. — The costs chargeable upon the State or county in criminal cases shall be made out so as to show the specific items, and be examined, entered of record, and certified to be correct by the court or judge be- fore whom the cause was tried or disposed of, and also by the district attorney, who are hereby granted full power, and it is hereby made their duty, to examine into, inspect, and audit all bills of cost accruing against the State or county, and dis- allow any part or all of said bills of cost that may be illegally or wrongfully taxed against the State or county. (1832, ch. 7, sec. 1 ; ex. ses., 1891, ch. 22, sec. 4.) 7594 (5570) 6443. Same; duty of comptroller, judge, or chair- man of county court as to cost bills. — A copy of the judgment and bill of costs, certified by the clerk of the court and by the attorney-general and judge, as provided in the preceding sec- \ Ckiminal Costs — CoMPENSATtoN of Officees. 305 tio-, shall be presented to the comptroller, chairman of the county court, or county judge, as the case may be, who, after said bills have been examined and approved by the judge and attorney-general, are hereby granted full powder, and it is here- by made their duty, to examine into, inspect, and audit all bills of cost accruing against the State or county, and disal- low any part of said bills of cost that may be illegally or wrongfully taxed against the State or county; and the State comptroller, judge, or chairman of the county court may dis- allow any and all costs taxed against the State or county on account of malicious, frivolous, or unnecessary prosecution, in the event the judge and attorney-general should, by mistake or otherwise, approve any of such bills. After correcting and auditing such bills of cost, the comptroller, judge, or chairman of the county court, as the case may be, shall issue a warrant for the amount, which shall be paid to such clerk or any other person authorized by him, in writing, to receive the same. (1827, ch. 36, sec. 6; ex. ses., 1891, ch. 22, sec. 5.) See Code, sec. 6398, subsec. 5, and notes. Acts 1891 (ex. ses.), ch. 22, has no application as to costs wiiere the indictment was found before the passage of the act. Stout v. State, 7 Pickle, 405. Act void in part. — The act of 18.79, ch. 101, so far as it attempted to have the comptroller issue his warrant different from the manner tlien provided in this section, was declared void. Pillow v. Gaines, 3 Lea, 466. 63S4 (4556) 5306. Neglect of duty. — No clerk of any court in this State shall be entitled to any fees which become charge- able to the State or county in consequence of any omission or neglect of duty on the part of such clerk. See Code, sec. 7589, ante, p. 303. 6395 (4557) 5307. Imperfect transcripts.— Nor shall such clerks be entitled to any fees for imperfect or incorrect tran- scripts made out and transmitted to a superior court, but such 3o6 Ten>^essee Tax Digest. fees shall, on motion, be stricken out of the bill of costs, and such clerk, moreover, charged with costs of the certiorari awarded to bring up a more perfect record. See notes under siibsec. 37 of sec. 6388 of the Code, post, p. 339. TO WHOM ALLOWED, AND WHEN. 7582 (5560) 6432. Compensation of officers. — The provisions of this Code, under the title " Of the Compensation of Offi- cers," in Part III [sees. 6352-6428], apply to this title, except so far as the same are changed by law. 7583 (5561) 6433. Fees.— Officers are entitled to no other fees in criminal cases, except such as are expressly provided by law, and in no case are they entitled to payment from the State or county, unless expressly allowed. (Alabama Code of 1852, sec. 4000.) See Code, sec. 6352, ante, p. 298. 1. Costs created by statute, and cannot be adjudged or taxed ex- cept where authorized by statute. — Costs are created and given by statute, and cannot be adjudged and taxed against any one. State or county, except where authorized by statute. State v. Delap, Peck, 91; Cross V. State, 1 Yen, 261; Mooneys v. State, 2 Yer., 578; State v. Barton, 3 Hum., 13, 15; Tucker v. 'State, 2 Head, 555, 556; State v. Elhs, 6 Bax., 551; Avery v. State, 7 Bax., 329; State v. Wormick, 1 Lea, 559; State v. Bachman, 6 Lea, 651; Keys v. State, 7 Lea, 409; State, ex rel, v. Nolan, 8 Lea, 399; State v. Martin, 10 Lea, 551; Mc- Gowan v. Taxing District, 11 Lea, 164; Baxter v. Comptroller, 14 Lea, 122; State v. O'Haver, 15 Lea, 47; Morgan v. Pickard, 2 Pickle, 210; Johnson v. State, 10 Pickle, 499, 501; Railroad v. Boswell, 20 Pickle, .529. 532; McHenderson v. Anderson Co., 21 Pickle, 591, 604 Cost is a matter exclusively with the legislature, and did not exist at common law. Henley v. State, 14 Pickle, 665, 689, 691, 695, 699. Neither the State nor a county can be taxed with the prisoner's costs by implication or conjecture. Tucker v. State, 2 Head, 555, 556; State V. Wormick, 1 Lea, 559; State v. Martin, 10 Lea, 550; Morgan V. Pickard, 2 Pickle, 210; State v. Odom, 9 Pickle, 448, 449; Henley V. State, 14 Pickle, 689. 2. Only such fees as are provided by law allowed. — It is the settled policy of this State, fixed by statute, and enforced by the decisions. Criminal Costs — Compensation of Officers. 307 of the courts, that no public officer shall '* receive fees or other com- pensation for any service further than is expressly provided by law." State v. Murphy, 17 Pickle, 515, 518; Henley v. State, 14 Pickle, 665, 691; McHenderson v. Anderson Co., 21 Pickle, 591, 604; Donaldson v. Walker, 17 Pickle, 236, 243; State v. Wilbur, 17 Pickle, 211, 215; Knox Co. V. Fox, 22> Pickle, 724, 726, 727 (section 6352 construed in connec- tion with section 7420 of the Code>; Railroad v. Boswell, 20 Pickle, 529. 3. Criminal costs not to exceed specific fees in statute. — The mean- ing of the statute contained in section 7583 of the Code is that no other fee or greater sum shall be paid the officer than the specific fee allowed by the statute. Duflf v. State, 3 Shannon's Cases, 785. 4. Officers are entitled only to such fees and costs as are fixed by statute. — In no case are officers entitled to payment of costs from the State or county unless expressly allowed. Henley v. State, 14 Pickle, 665, 691; Donaldson v. Walker, 17 Pickle, 236, 243. Costs are created alone by statute; and, unless there is a statute to authorize it, the court cannot give costs to, or against, any one. Railroad v. Boswell, 20 Pickle, 529, 532; McHenderson v. Anderson Co., 21 Pickle, 591, 604; United States, ex rel., v. Gaines (U. S.), 25 L. ed., 733-735. 5. Rule before statute in section 7594 of Code. — Before the statute in section 7594 of the Code was enacted, it was held that a judgment against the State for costs could be reviewed by appeal or writ of error only, and that the comptroller was bound by the judgment. State V. Dickson, 2 Shannon's Cases, 486. But see Donaldson v. Walker, 17 Pickle, 236, 244. 6. Clerk entitled to no fee for certifying or copying bill of costs against State or county, when. — The clerk is not entitled to a fee of twenty-five cents, or to any other fee, for certifying a bill of costs in a criminal case for payment by the State or county; nor is he entitled to a fee of ten cents per one hundred words for copying bills of costs in criminal cases on the record, preliminary to their adjudication against the State or county, for there is no statute requiring him to copy such bills of costs upon the minutes of the court before judg- ment that county or State shall pay them. State v. Wilbur, 17 Pickle, 211, 215, 216. See Code, sections 7593, 7594, 6398, and 5301. 7. Retaxation of costs at instance of county judge; illegal fees stricken out; judgment against State or county for illegal fees is void.- When bills of costs have been allowed against the county, and certified as prescribed by section 7593 of the Code, the county judge or chairman of the county court may, under section 7594 of the Code, bring the matter before the trial judge, and ask for a retaxation of costs, and the cutting out of all illegal and unauthorized items. Nei- 3o8 Tennessee Tax Digest. ther the issuance of a warrant nor the certification by the judge and attorney-general would preclude this retaxation of costs. A judg- ment for costs against the State or county, which is not authorized by statute., is void, and the county judge cannot legally pay a void judg- ment. Donaldson v. Walker, 17 Pickle, 236, 244. 8. No retaxatioi:! against State after costs are adjudged against prosecutor. — Where the costs of a felony case were adjudged in the first instance against the prosecutor, they cannot afterwards, on the return of the execution nulla bona, be legally taxed and certified against the State, and such judgment is absolutely void; and the comp- troller should refuse the certified bill of costs based thereon. Morgan V. Pickard, 2 Pickle, 208; Musgrove v. Hamilton Co., 3 Gates, 17. So, when costs are adjudged against prosecutor in a proceeding against a party to keep the peace, they cannot, upon a return of nulla bona, be adjudged against the State or county. State v. Wormick, 1 Lea, 559. 9, County liable for State's attorney's fee in motion cases, when. — Where execution issued from a judgment upon a motion against a clerk for failure to enroll cases as required by law is returned nulla bona, the county in which the motion is made is liable for the fee of the district attorney-general. Wright v. Shelby Co., 9 Bax., 145. 7595 (5570a) 6444. Seal not necessary. — It shall not be nec- essary for clerks tO' affix the seal of their respective courts to their certificate to the bill of cofets in criminal prosecutions. (1866-67, ch. 36, sec. 7.) No fee allowed for seal to certificate to bills of costs. — No fee will* be allowed a clerk for affixing the seal of his court to his certificate to the bill of costs in criminal cases. Henderson v. Walker, 17 Pickle, 234. 7596 (5570b) 6445. Comptroller may draw separate warrant in favor of any party interested. — The comptroller, in auditing bills of cost of State prosecutions, when, in his judgment, it is expedient and proper to do so, may draw his warrant on the treasurer in favor of any of the parties interested in the bills of cost for the sum due him, which warrant the comptroller shall send to the clerk of the court whence said bills were sent, and at the same time notify the clerk that the amount sent is all that was due said party in said bills. (1867-68, ch, 59, sec. 2.) ' Criminal Costs — Compensation of Officers. 309 7597 (5570c) 6446. Clerk to deliver such warrant to proper party. — The clerk shall deliver the warrant to the party in whose favor it is drawn as soon as called for, taking- receipt for the same. (Id., sec. 3.) 7598 (5571) 6447. Court and attorney to examine and certify bill cf costs, how; and court may hear proof. — It is the duty of the attorney-general and of the court in which a criminal action has been tried, or costs accrued, to examine bills of costs ; and the court may also hear testimony in regard to the items, if necessary, and, if the charges are legal and duly proved, to certify the fact thereon. In making said certificate, the judge and attorney-general shall certify the aggregate amount of each bill of cost, writing said aggregate amount in both words and figures, and no bill of cost shall be paid unless so certified. (1827, ch. 48; 1832, ch. 7; 1897, ch. 29.) 7599 (5572) 6448. Discretion of court.— The court has also discretion in controlling the taxation of costs, and in no case shall the State or county be charged therewith, unless the court so order, specifying in the order the officers and witnesses whose costs are to be taxed, together with the amount due each. (1827, ch. 48, sec. 1.) 76C0 (5573) 6449. No fees to prosecutor. — No prosecutor in a misdemeanor is entitled to any compensation for his services as prosecutor, or for his attendance as a witness on behalf of the State. (1829, ch. 100, sec. 3.) 7601 (5574) 6450. Fees of justice. — In all cases the fees due to a justice of the peace for any proceedings before him therein shall be certified to the circuit court and taxed and certified by the court and attorney-general as other costs, in the manner herein prescribed. (Alabama Code of 1852, sec. 3986.) Justice's certified bill of costs is subject of forgery by the fraudu- lent making thereof. — A certified bill of costs made by a justice of the peace to obtain costs in a criminal case from the State or county is a " writing," the fraudulent making of which is a forgery to the preju- 3IO Tei^nessee Tax Digest. dice of the State or county, as the case may be, for the reason that such bill of costs, if genuine, possesses undoubted legal efficacy, and is the foundation of the legal liability of the State or county. Lut- trell V. State, 1 Pickle, 232. 7602. Justice's cost bills examined; when disallowed. — It shall be the duty of the judge and attorney-general to care- fully examine and inspect all bills of cost certified for pay- ment by justices of the peace in which the State or county has been charged with the costs of criminal prosecution : and if it shall appear to the judge and attorney-general, in any man- ner, that the prosecution in which the State or pounty has been taxed with the cost by the justice of the peace is frivo- lous, malicious, or commenced to procure fees, it shall be the duty of the judge and attorney-general to disapprove and dis- allow said bill of cost, and no part of said cost shall be paid by the State or county in such case. (1889, ch. 139, sec. 1.) Costs disallowed in frivolous cases before justice. — Where the State or county has been taxed with the costs by a justice of the peace in cases declared to be frivolous, the entire bills of costs will be disal- lowed under section 7602 of the Code. Henley v. State, 14 Pickle, 665, 696. 7603. Certificate not conclusive. — The certificate of the jus- tice of the peace trying a cause, that the prosecution is not frivolous, malicious, or set on foot to procure fees, shall not be conclusive on the judge or attorney-general, but they may, and it is hereby made their duty to, inquire, and, if it shall appear to them that the prosecution is frivolous, malicious, or commenced to procure fees, to disapprove said bills of cost as provided in the last section. (Id., sec. 2.) Certificate subject to forgery. — This certificate is a '" writing " in the sense of section 6596, and is the subject of forgery. Such bill of cost, if genuine, possesses undoubted legal efficacy, and is the foun- dation of the legal liability of the county or State. Luttrell v. State, 1 Pickle, 235, 236. 7604 (5575) 6451. In small offense case.— In all "small of- fenses," and all other cases triable before a justice and finally Criminal Costs — Compensation of Officers. 311 acted upon by him, the costs may be taxed by him, and execu- tion issued against the defendant or prosecutor, as the case may be, therefor. (Alabama Code of 1852, sec. 3987.) See sees. 6953-6972. 7605 (5576) 6452. Costs of ofBcers before justice. — The costs due constables or other executive officers on proceedings in criminal cases before a justice of the peace are certified and allowed in the manner specified in the last three sections in re- gard to similar fees due justices of the peace. 7606 (5577) 6453. Costs. — The costs which may be adjudged in criminal cases include all costs incident to the arrest and safe-keeping of the defendant before and after conviction, due and incident to the prosecution and conviction, and incident to the carrying of the judgment or sentence of the court into effect. (1805, ch. 49: 1813, ch. 137, sec. 2.) See Code, sec. 7622. 1. Costs for attaching witnesses in criminal cases. — The costs of attachment for witnesses in criminal cases, if not adjudged against the witnesses, are taxable as costs of the cause. If the defendant is con- victed in such case, he is liable for such costs incurred in attachments for State witnesses when they are exonerated from payment of same. State V. Reinhart, 8 Pickle, 270. 2. Cost of boarding jury. — The cost of keeping or boarding a jury is included in this section. State, ex rel., v. Nolan, 8 Lea, 667. 3: Judgment for cost of boarding jury rendered at a subsequent term is void.— Judgment against the State for costs of boarding jury rendered at a term subsequent to the termination of the case is void, and mandamus against the comptroller will not lie to compel this payment. State, ex rel., v. Nolan, 8 Lea, 663; Morgan v. Pickard, 2 Pickle, 211. 4. Defendant liable for his own costs, except when.— The State and county are not liable for the defendant's costs, although he is ac- quitted, unless the court adjudges such costs against the State or county, as provided in section 7615. Tucker v. State, 2 Head, 555; Avery v. State, 7 Bax., 330, 331; State v. Martin, 10 Lea, 550; Duff v. State, 3 Shannon's Cases, 785. See State v. Delap, Peck, 91. 312 Tennessee Tax Digest. 7607 (5577a) 6454. Expenses of keeping criminal jury, how paid. — The expenses of keeping a jury in any criminal case in which the State or county may eventually become liable [Acts 1897, ch. 20, sec. 1, as amended by Acts 1899, ch. 307, com- piled herein as under section 7622 of the Code, post, p. 318, showing cases of eventual liability] may, in the discretion of the court, be certified, upon the adjournment thereof, to the comptroller or judge or chairman of the county court, as the case may be, who shall issue his warrant for same to any per- son authorized to receive it ; provided, that all parties having such bills against the State or county shall first make oath as to the correctness of said bills before the clerk of the cir- cuit or criminal court, who shall affix his certificate to same ; shall then be read and presented in open court to the judge and attorney-general for their inspection and allowance, if cor- rect. The clerk of the court shall then be required to enter so much of said bill as approved and allowed by the judge and attorney-general upon the minutes of his court, and shall certify the amount of said bill, in writing, on face of original bill, as is allowed, together with the seal of his office attached, and forward same to the proper authorities for payment, for which he shall receive a fee of fifty cents, to be paid by the party to whom the bill belongs. (1859-60, ch. 6, sec. 2; ex. ses. 1885, ch. 11, sec. 1.) See Code, sees. 7619, 7623-7626. 7608. Duty of county judge or chairman, and comptroller.— The judge or chairman of the county court, or the comptroller, shall not issue warrants for any accounts for boarding juries until the bill shows on its face that all the requirements of this act have been complied with. (Ex. ses. 1885, ch. 11, sec. 2.) 7609 (5577b) 6455. Refunded, when. — If such costs are after- wards collected from the defendant or his sureties, it shall be turned over to the treasurer of the State or county, as the case may be, by the clerk of the court, as fines are paid over. (1859-60, ch. 6, sec. 3; ex. ses. 1885, ch. 11, sec. 3.) Criminal Costs — Compensation of Officers. 313 7610 (5578) 6456. Judgment for costs. — The judgment for costs may be rendered at the time of conviction, or, upon mo- tion, at any time subsequent thereto, and execution awarded accordingly. But see note 3 under sec. 7606 of the Code, ante, p. 311. BY WHOM PAID. -7611 (5579) 6457. By prosecutor, when.— When the defend- ant is discharged upon the examination, or acquitted in any criminal prosecution for a public offense, and the court is of opinion that the prosecution was malicious or frivolous, the prosecutor may [" shall," by Acts 1899, ch. 367, as to which see note under this section] be taxed with all the costs. (1794, ch. 1, sec. 76; 1807, ch. 24, sec. 1 ; 1851-52, ch. 70.) See note 8 under sec. 7583 of the Code, ante, p. 3*08. 1. Constitutionality of Acts 1899, ch. 367, doubted, but question con- sidered immaterial. — Acts 1899, ch. 367, undertakes " to amend section 6457 of the Milliken & Vertrees compilation of the ^statutes of Ten- nessee, entitled an act to provide for taxing costs in criminal prosecu- tions." Said section is not entitled as stated. This statute does not recite in its caption or otherwise the title or substance of the law un- dertaken to be amended further than as stated. For this reason it is thought that this statute is unconstitutional. See Memphis Street Railway Co. v. State, 2 Gates, 598; const., art. 2, sec. 17. If the words " entitled an act to provide for taxing cost in criminal prosecutions " be treated as a part of the title of the act and as expressing its sub- ject, and not as expressing the subject or title of the act to be amended, so as to make the caption read, "An act entitled an act to provide for taxing cost in criminal prosecutions," by leaving out, as surplusage, the words " to amend section 6457 of Milliken & Vertrees' compilation of the statutes of Tennessee," this act might be consti- tutional. But whether it is constitutional or not is probably imma- terial, for the reason that the same force and effect would be given to the word *' may " as to the word " shall." — Ed. 2. Prosecutor is liable for costs, when and when not. — The prose- cutor is not liable for costs, unless the prosecution was rpalicious or frivolous. Dillon v. State, 4 Hay., 271. The fact that the prosecution is frivolous or malicious should appear from the proof at the trial. Frazer v. State, 2 Swan, 535; State v. Green, 2 Head, 356; Weems v. State, 3 Shannon's Cases, 452. The prosecutor is not Hable for the 314 Tennessee Tax Digest. costs in any case except where that liability has been created by stat- ute, Hansard v. State, 5 Hum., 115; Weems v. State, 3 Shannon's Cases, 452; State v. Wormick, 1 Lea, 560. . The prosecutor cannot be taxed with the costs for his nonattendance at the trial or mere aban- donment of the case. Weems v. State, 3 Shannon's Cases, 452. 7612 (5580) 6458. Same. — The provisions of the precedin.g^ section extend to trials before justices of the peace, by whom the prosecutor may, in like manner and under like circum- stances, be taxed with all the costs. (lb.) See Code, sec. 6913. 7613. 6459. Same. — If any person shall commence a criminal prosecution against any individual under any of the laws of this State, either by warrant from a justice of the peace, or otherwise, and -shall afterwards willfully a1)andon the same, the court having jurisdiction of said cause, shall have power to tax the prosecutor with the costs. (1871, ch. 19.) 1. Adjudged against prosecutor only in clear cases; power a legal discretion. — To authorize the court to tax the prosecutor with the costs, the prosecution should be very clearly without foundation, and that known to the prosecutor. It is only intended for clear and strong cases of malicious prosecution, unmixed with the proper motive. The power given to magistrates to tax the prosecutor with costs is a legal discretion, not arbitrary. State v. Green, 2 Head, 358; Frazer V. State, 2 Swan, 535. 2. No retaxation of. — Costs taxed to a prosecutor in a proceeding to keep the peace, cannot, upon the return of nulla bona, be retaxed to the State. State v. Wormick, 1 Lea, 559. 7613a. Prosecutor taxed with costs in cases of embezzle- ment and fraudulent breach of trust, when. — In all cases of embezzlement and fraudulent breach of trust, where it appears to the court that the defendant has made settlement before the time of trial, and the prosecutor fails to attend and prose- cute, the court shall tax the prosecutor with all costs of the case. (1903, ch. 300, sec. 1.) Criminal Costs — Compensation of Officers. 315 7614 (5581) 6460. No costs against defendant acquitted. — Any person tried for a public offense, and acquitted on the merits, shall pay no costs. (1853-54, ch. 72, sec. 3.) 7615 (5581a) 6461. Defendant acquitted liable for his own costs, when. — Any person tried and acquitted of a public of- fense, as provided in section 7614, shall be liable for the cost in his behalf sustained, unless the court trying such person shall adjudge the same against the prosecutor, State, or county, which the court is hereby empowered to do. (1859-60, ch. 76, sec. 1.) 1. Statute requiring State or county to pay criminal costs construed to be limited to costs of prosecution, when. — At common law, costs are not recovered by the defendant in a criminal case from the gov- ernment, and a statute which requires the State or county to pay costs or all costs is to be expounded as limited to the costs of prosecution, unless a further intention be shown to embrace the costs of the de- fendant. Prince v. State, 7 Hum., 137, 140; State v. Barton, 3 Hum.,. 13-16; Tucker v. State, 2 Head, 555-558; Henley v. State, 14 Pickle, 689. 2. Statute modifies rule established before. — This section was en- acted for the purpose of changing or modifying the rule established (in Dillon v. State, 4 Hay., 271; State v. Delap, Peck, 91, 92; State v. Barton, 3 Hum., 13, 15, 16; Prince v. State, 7 Hum., 137, 140; Tucker V. State, 2 Head, 555-558; Henley v. State, 14 Pickle, 689), that in no event could the State be taxed with the defendant's costs. It may be otherwise adjudged, it seems, under this statute. Avery v. State, 7 Bax., 331. 3. Criminal costs may be taxed against the State in the discretion of the court. — It is not true that the State pays no costs, unless there be some express statute authorizing it, and specifically defining the character of case in which it shall be done. It was seen to be simply impossible to enforce all the contingencies in the progress of State prosecutions, where, as a matter of justice and right, the State should be required to pay the costs; and, therefore, the lav/ has lodged in the courts some discretion on the subject. DufF v. State, 3 Shannon's Cases, 785. See Code, .sec. 7615. 4. Criminal costs must be expressly allowed by court in discretion- ary cases. — The provision in the statute that in no case shall the officer be entitled to payment from the State or county, unless expressly allowed, has reference to other provisions, in which the courts have 3i6 Tennessee Tax Digest. the discretion to tax costs against the State or county in all proper cases, and means such costs must be allowed by the order or direc- tion of a competent court. Duff v. State, 3 Shannon's Cases, 785. See Code, sees. 7583 and 7615. 7616 (5582) 6462. In other cases, pays his own witnesses. — In all other cases the defendant shall pay the costs of witnesses summoned by him. (1807, ch. 24, sec. 2; 1851-52, ch. 178, sec. 2.) 7617 (5583) 6463. And all costs on conviction. — If the de- fendant is convicted of a criminal ofTense, he shall pay all the costs which have accrued in the cause. (1813, ch. 136, sec. 2.) Infants are liable for fines, costs, and torts. — Infant may be con- victed of crime, lined, and adjudged to pay costs; and he is liable for trespass and torts, and costs of suit. Beasley v. State, 2 Yer., 481; State V. Dillon, 1 Head, 393 (therefore an infant may be a prosecutor on an indictment); Dial v. Wood, 9 Bax., 297 (infant is liable to his surety paying the costs and fine adjudged against him, and his guard- ian is subject to garnishment for same) ; Lowery v. Cate, 24 Pickle, 58 (infants' liability for torts and contracts defined). 7618 (5584) 6464. Costs on peace warrant. — Upon the trial of a person who has been arrested on a warrant to keep the peace, and bound over for his appearance at court to answer the charge, the court may, at its discretion under the circum- stances, order such person, or the person at whose instance the warrant was taken out, to pay the costs. (1835, ch. 59. sec. 1.) Such defendant could not be taxed with the costs before this stat- ute. Mooneys v. State, 2 Yer., 578. See Code, sec. 6913. 7619 (5585) 6465. State or county pays costs on. — The State or the county in which the offense was committed or is triable, according to the nature of the oiTense, pays the costs accrued on behalf of the State, in the following cases : (1) Acquittal. — When the defendant is acquitted by a ver- dict of the jury upon the merits. (1813, ch. 136, sec. 3; 1853- 54, ch. 72, sec. 2.) » Criminal Costs — Compensation of Officers. 317 (2) Dismissal. — When the prosecution is dismissed, or a nolle prosequi entered by the State. (1832, ch. 8, sec. 2.) (3) Abatem.ent. — When the action has abated by the death of the defendant. (1837-38, ch. 141, sec. 1.) (4) Discharge.— When the defendant is discharged by the court or magistrate before indictment preferred or found, or after indictment and before verdict. (1813, ch. 136, sec. 5.) (5) Nulla bona; criminal costs, when adjudged against State. — WHien the defendant has been convicted, but the exe- cution issued upon the judgment has been returned " nulla bona." (Id., sec. 2; 1853-54, ch. 38, sec. 1; ex. ses. 1885, ch. 14; 1897, ch. 20, sec. 1, subsec. 3; Riddick v. State, 15 Pickle, 655.) 7620 (5586) 6466. Costs paid by State.— The costs v^hich have accrued in any criminal prosecution for offenses punish- able with death or by confinement in the penitentiary, in cases accruing under subsections 1, 3, and 5 of the foregoing section, shall be paid by the State. (Ex. ses. 1891, ch. 22, sec. 1.) 7621 (5587) 6467. Costs paid by county. — Similar costs in criminal prosecutions for ofifenses punishable in any other way than by death or confinement in the penitentiary, also similar costs in criminal prosecution for ofifenses punishable with death or confinement in the penitentiary, in cases accruing un- der subsections 2 and 4 of section 7619, shall be paid by the county. (Id., sec. 2.) 7622. Costs defined. — What is meant by costs in the fore- going sections [sections 7620 and 7621] is all costs accruing under existing laws on behalf of the State or county, as the case may be, for the faithful prosecution and safe-keeping of the defendant, including the cost of boarding juries and that of the jailer; but nothing in this, or said sections, shall be so con- strued as to require the State to pay any cost for guarding the jail to prevent mob violence, or to prevent rescue or the pris- 3i8 Tennessee Tax Digest. oner's escape, or for transporting to any other county for safe- keeping on any account whatever, but the same shall be paid by the county in which the crime was committed or claimed to have been committed. (Id., sec. 3.) See Code, sec. 7606. 1. Liability of counties for costs in felony cases. — The counties are liable for costs in felony cases (1) when nolle prosequi is entered, (2) when the grand jury ignores the indictment, (3) when the case is retired, (4) when the case is dismissed by a justice of the peace on preliminary trial. Stout v. State, 7 Pickle, 405, reporter's note. But this was before Acts 1897, ch. 20, and 1899, ch. 307. 2. Statute does not act retrospectively. — Sections 7620-7622 have no application to felony cases in which the indictment was found before their enactment. Stout v. State, 7 Pickle, 405. 3. Statutes limited in operation. — The statutes in sections 7619-7622 are not in force now, except to indicate the general rules of ascer- taining as between the State and county which shall pay the costs in cases in which they are made liable by Acts 1897, ch. 20, and Acts 1899, ch. 307 (compiled herein as section 7622a), and as to the definition of costs contained in section 7621, and as to the exceptions made in the second proviso in subsection 3 of section 1 of Acts 1897, ch. 20. 4. Liability of counties for cost in small offense cases limi:ed in certain counties. — Under Acts 1903, ch. 114, and Acts 1905, ch. 215, applicable to counties of 60,000 to 90,000, and of 150,000, or over, in- habitants, the county shall not be liable for any cost or fee arising under small offense law to any justice of the peace in any case tried and submitted before him, unless the offense was committed within the civil district, or municipal corporation, in and for which such jus- tice was elected. This statute is applicable to the counties of Knox, Hamilton, and Shelby only, under the federal census of 1900, and for this reason is omitted. See Code, sec. 6970, for the rule as to other counties. — Ed. 7622a. State and county not liable for costs; exceptions. — Neither the State of Tennessee nor any county thereof shall pay or be liable in any criminal prosecution for any costs or fees hereafter accruing, except in the following classes of cases: 1. Cases of homicide, rape, robbery, burglary, arson, embez- Cbtminal Costs — Compensation of Officers. 319 zlement. incest, bigamy, larceny, or assault with intent to commit murder, where the prosecution has proceeded to a ver- dict in the circuit or criminal court; provided, that in cases of larceny and assault with intent to commit murder, no costs shall be paid by the State [or] any county except the costs accruing to the clerk of the court in which the case is tried, and the sheriff or other officer executing the processes in the case. (1899, ch. 307.) 2. Cases under the small offense law where the defendant has submitted before a justice of the peace and been sent to the workhouse : and 3. All cases where the defendant has been convicted in a court of record and the execution issued upon the judgment against the defendant has been returned nulla bona ; provided, that neither the State of Tennessee nor any county thereof shall be liable for, or pay any costs in any criminal case, where security has been accepted by the officer taking the security, and an execution, afterwards returned nulla bona, as to the defendant and his securities; provided, that compensation for boarding prisoners [Code, sections 7623-7626], expenses of keeping and boarding juries [Code, sections 7607-7609, and 7623-7626], compensation of jurors [Code, sections 5843-5849], costs of transcripts in cases taken to the supreme court by appeal or writ of error [Code, section 6388, subsection 371, mileage and legal fees for removing or conveying criminals and prisoners from one county to another, or from one jail to another [Code, section 6402, subsections 27-29], and compen- sation and mileage of witnesses for the State duly subpoenaed and required to attend before any court, grand jury, or mag- istrate in a county other than that of their residence and more than five miles from such residence [Code, sections 5618, 7366], and where any witness for the State shall be confined in jail to await the trial in which he is to testify, shall be paid in all cases as heretofore. (1897, ch. 20, sec. 1 ; 1899, ch. 307.) 1. Costs payable by the State in criminal cases.— The costs which have accrued in any criminal prosecution for the felonies named in 320 Tennessee Tax Digest. subsection 1 of section 7622a shall be paid by the State (1) upon ac- quittals by verdict, (2) upon conviction and return of nulla bona as provided in subsection 3 of said section 7622a, (3) and in cases in the second proviso in subsection 3 of section 7622a when coming under the conditions provided in section 7620 and subsections 1, 3, and 5 of section 7619. — Ed. 2. Costs payable by the counties in criminal cases. — The counties shall pay the costs in the cases stated in subsection 2 of section 7622a; and also in the second proviso of subsection 3 of section 7622a, when coming under the conditions as provided in section 7621 and subsec- tions 2 and 4 of section 7619. — Ed. 3. Costs of acquittals. — Acquittals paid hereafter only in cases pro- vided in subsection 1 of section 7622a. 4. Costs of convictions.— Convictions paid as heretofore after exe- cution has been issued and returned nulla bona. 5. Witness fees. — No witness fee paid to witness living within five miles of place of trial either before magistrate, grand jury, or court. Where witness lives five miles or more, but not ten miles, clerk should state after name of witness " more than five miles." 6. Attendance and mileage of v/itnesses residing beyond the limits of the State. — Witnesses residing beyond the limits of the State, but under subpoena within the county in this State, are entitled to their attendance and mileage within the State, but not for mileage outside of the State. Opinion of Attorney-General Gates. 7. State is not liable for costs in cases of false pretense. — The State is not chargeable with the costs of a criminal case for obtaining money under false pretense, because this offense is not included in Acts 1897, ch. 20, as amended by Acts 1899, ch. 307. Opinion of Attorney-Gen- eral Gates. 8. State is not chargeable with costs- in unsuccessful disbarment proceedings, but the relator must pay the costs. — In disbarment pro- ceedings in the name of the State, upon the information or relation of another, against a lawyer, the costs are not chargeable to the State, and should not be taxed against the State, though the proceeding is dismissed, and the judgment is in favor of the defendant; but the costs in such case should be adjudged and taxed against the informer or relator. Opinion of Attorney-General Gates. 7622b. Witnesses living within five miles receive no pay. — Neither the State of Tennessee nor any county thereof shall CuiMiNAL Costs — Compensation of Officers. 321 pay or be liable in any criminal case or prosecution for the fees, costs, or mileage which may hereafter accrue in favor of any witness who shall, at the time of his attendance as such witness before any court, grand jury, or magistrate, reside within five miles of the place where he attends as such witness. (1897, ch. 20, sec. 2.) 1. Statute constitutional.— This statute (Acts 1897, ch. 20) is consti- tutional and valid. Henley v. State, 14 Pickle, 665. 2. Criminal costs paid by State after conviction only on return of nulla bona. — The costs for which the State is liable in felony cases, under this statute (Acts 1897, ch. 20), after conviction, cannot be ad- judged or paid upon a mere declaration of the defendant's insolvency by the court, but alone upon an actual return of execution nulla bona. The return is the sole evidence of such insolvency that the law recog- nizes. Riddick v. State, 15 Pickle, 655. Before the act of 1885 (ex. ses.), ch. 14, the court could not order the costs to be paid by the State until execution had been issued against the defendant, and properly returned, showing the money could not be made out of him. Tho mere admission by the attorney-, general that the defendant was insolvent would not do. State v. Martin, 10 Lea, 550. But under Acts 1885 (ex. ses.), ch. 14, a return of nulla bona was not necessary, and the insolvency might be adjudged by the court upon it being made to appear to the court without such return. — Ed. 3. Costs in habeas corpus cases paid by State or county, when. — In habeas corpus cases, where the costs are not adjudged otherwise than against the State or county, the State must pay the costs when the charge is a felony, and the county when it is a misdemeanor. Hen- derson V. Walker, 17 Pickle, 229, 232, 233. See Code, sees. 7619-7621, 7022, 5542-5545. But this case arose upon facts before Acts 1897, ch. 20. and 1899. ch. 307. 4. On acquittal of the felony and conviction of misdemeanor State paid her costs as to felony before Acts 1897, ch. 20.— Where, before Acts 1897, ch. 20, and 1899, ch. 307, a defendant was acquitted of the felony, but was convicted of a misdemeanor, the State was obligated to pay such costs as accrued at its instance in attempting to make out the felony, and the matter might be referred to the clerk to ascer- tain such costs. Slagel v. State. 1 Shannon's Cases, 393; State v. Ar- nold, 16 Pickle, 308. 7623. Judge to render judgment and certify fees for jailer and keeper of jury. — In all felony cases, after indictment is 11 322 Tennessee Tax Digest. found, in which the State may eventually become liable, the judge shall render judgment against the State for, and certify at the adjournment of each term of the court, all fees of the sheriff for board of the prisoners ; also the fees for boarding the juries in cases in which no final disposition has been had. (1893, ch. 138, sec. 1.) 7624. Bill, what each case to show. — All of said fees may be made out in one bill, but each case shall show the date of in- dictment, the date of commitment, the date or dates of board- ing the jury, and the rate charged for same, and up to what date judgment has been given for said costs, and of all previ- ous dispositions of any previous court in said case or cases. (Id., sec. 2.) See Puckett v. Hyde, 6 Heis., 194; note 5 under sec. 7629. 7625. What clerk to tax when State liable.— If, on the final disposition of the case, the State shall be held liable for the costs, the clerk shall only tax the difference between the amount previously collected and the amount due to date of final disposition, or not more than five days thereafter, as the case may be, as now provided for by law. (Id., sec. 3.) 7626. What when State not liable. — In the event the court shall not hold the State liable for the costs in any such cases when finally disposed of, it shall be the duty of the clerk to include all of the costs previously paid by the State on this account in his executions and in his bill of costs, and to collect and refund the same to the State, in the same manner as he is required by law to pay over State revenue. (Id., sec. 4.) See Code, sees. 7607-7609. Jail and jury bills, and their requisites. — Since the passage of the above act of 1893, ch. 138, jail and jury bills have been taxed separately from other costs at the adjournment of court. No jail fees should be taxed against the State, unless the defend- ant has been indicted, and the bill of fees should show the following: Date of commitment; Criminal Costs — Compensation of Officers. 323 Date of indictment; Offense charged; Dates for which board is charged; Disposition of the case, and the date thereof; Disposition of defendant, and the date thereof. At the final disposition of the case, if the defendant is not convicted or acquitted by a jury, or if he dies in jail before disposition of the case, the clerk of the court should present the county with a bill for any cost the State may have paid, collect the same, and refund the amount to the State as provided in section 3. 7627 6468. Costs in cases transferred to federal courts to be paid by the State, when. — In cases of the grade of felony, com- mencing in any of the courts of this State, and afterwards re- moved to the United States circuit or district courts, and there disposed of adversely to the State, the costs of the prosecu- tion shall be paid by the State, as is now provided by law for payment of costs in such cases where determined in the State courts. (1882, 2d ex. ses., ch. 2, sec. 1.) 7628 6469. By county, when. — In case of misdemeanor trans- ferred and disposed of as aforesaid, the county where the case originated shall pay the costs. Sheriff or other officers deliv- ering prisoners from State to federal courts shall be allowed the same fees, and have same guards and pay therefor, as is allowed for like services in State courts under the laws of the State. (lb.) 7629 6470. Warrants for costs. — Said costs shall be paid upon warrant of the comptroller, or judge or chairman of the county court, as the case may be, which warrant shall be is- sued upon properly authenticated and itemized bills of costs certified as now required by law by the United States district attorney and circuit and district judge holding said federal court, in the same manner as other similar costs are now paid by the State or counties. (Id., sec. 2.) 1. County pays witness fees on ignored indictment. — Witness fees before the grand jury, on an indictment ignored, taxed to county. State V. Treadway, 3 Lea, 55. But under section 7622a (Acts 1897, ch. 20, and 1899, ch. 307), witnesses are not entitled to any fee wher^ 324 TennEkSSee Tax Digest. the indictment is ignored, except witnesses from other counties, as provided in the second proviso of subsection 3 of said section 7622a. 2. County pays State tax, when. — County must pay the State tax where the defendant has worked out the fine and costs under a con- tract with the county. State v. Sibley, 4 Lea, 738; Knox v. State, 9 Bax., 202. 3. Defendant not required to pay or work out certain costs. — A defendant cannot be held in custody for the payment of costs accrued on his own behalf, but only for those in favor of the State. Knox v. State, 9 Bax., 202. Where a nolle prosequi is entered on condition defendant pay the costs, he cannot be charged with the State and county tax. State v. Hartman, 5 Lea, 118. The requirements of the law in regard to costs chargeable to the State or county must be strictly complied with. State v. Martin, 10 Lea, 550; Morgan v. Pick- ard, 2 Pickle, 208. 4. County pays coroner. — Coroner's fees are chargeable to the county, and not the State. Galloway v. Shelby Co., 7 Lea, 121. 5. Cases separately certified. — The bills of costs of each case should be certified separately. Puckett v. Hyde, 6 Heis., 194. A judgment against the State for boarding several jurors, in different cases, is void. Such items belong in the bill of costs in each case. State, ex rel., v. Nolan, 8 Lea, 663. On costs, see Meigs' Dig., sec. 848, et seq. See ante, sec. 7624, modifying this rule. 7629a. Appeal without bill of exceptions does not act as a supersedeas where the judgment is for a penalty less than death or imprisonment for life. — In all criminal cases ap- pealed to the supreme court from the circuit and criminal courts of this State, where the judgment of the court is for a less penalty than death or imprisonment for life, and the de- fendant is in actual confinement in jail, when no bill of excep- tions is filed in the time prescribed by the law, in said circuit or criminal courts, the appeal shall not act as a supersedeas, and the defendant shall enter upon his term of service in the penitentiary or workhouse at once after the expiration of the time for filing said bill of exceptions. (1901, ch. 102.) Prisoner held at sheriff's cost, when. — Where the defendant in jail fails to perfect his appeal by filing a bill of exceptions in the time al- lowed by law, the sheriff should deliver the prisoner at once to the Criminal Costs — Compensation of Officers. 325 penitentiary or workhouse authorities, as the case may be, or the prisoner will be held at the sheriff's cost. SUGGESTIONS TO CLERKS. 1. Retaxation of costs after return of nulla bona. — Under a recent order of the supreme court, the costs accruing in the lower courts in criminal cases, w^here the case has been affirmed, is retaxed in the lower court after execution has been returned nulla bona. The clerk should state in his bill of cost to this office that the case was affirmed at term of the supreme court, and judgment taken over against the State at term of his court. 2. Statute to authorize payment of costs; what bills of cost should show. — It is a familiar principle of law that a party claiming costs against the State must be able to show clearly and definitely the stat- ute authorizing payment by the State; and it is necessary that bills of cost should show the character of the cases in which it is claimed that the costs accrued. Opinion of Attorney-General Gates. General rules to be followed. — If clerks will specifically itemize and particularize all fees taxed, much trouble and confusion can be avoided. Observe specially the following: (1) Giv^e the number of words in all transcripts. (2) Tax only State subpoenas, motions, orders, witnesses, etc., and let bill of cost show. (3) Give number trips and terms attendance of witnesses is claimed and place where subpoenaed. (4) Where mileage for defendant and sheriff is claimed, give point of arrest. (5) No witness fee should be taxed, unless he has proved his at- tendance in open court, and was properly summoned. Shannon's Code, sec. 7369. This statute must be rigidly enforced. Lancaster v. State, 3 Lea, 654. (6) One summons of witness is sufficient until the case is disposed of. Shannon's Code, sec. 5608. DISTRICT ATTORNEYS. 6376 (4542) 5289. Fees of district attorneys.— The attorneys- general for each judicial district are entitled to demand and re- ceive for services the follow^ing fees, and none other : 1. For each final conviction where the punishment is death (187<). ch. 90) $20 00 326 Tennessee Tax Digest. 2. For each final conviction for selling, wearing, or us- ing Bowie knife and Arkansas toothpick (1879, ch. 90; see, also, sec. 6635) 20 00 3. For each final conviction for perjury (1879, ch. 90) . . 15 00 4. For each final conviction for any felony (1879, ch. 90) 10 00 5. For each final conviction for a misdemeanor (1879, ch. 90) 5 00 1. Fee depends on final conviction, and not punishment. — For each final conviction the district attorney-general is entitled to the fee fixed, although the punishment be commuted by the court under section 7232, or by the governor under section 7227. The fee is dependent alone upon the final conviction, and not upon the infliction of the pun- ishment. State V. Hill, 3 Cold., 98. By analogy, the same rule should prevail where the defendant is pardoned after final conviction. 2. Before statute, fees upon conviction, not final. — Before the act of 1879, ch. 90, making the fee depend upon the final conviction, it was held that the district attorney-general was entitled to the fees fixed for each conviction, although reversed in supreme court, and the defendant is acquitted on a subsequent trial. Said statute was enacted to obviate this decision. See State v. Graves, 6 Bax., 489. 3. No fee since statute until final conviction. — Since this statute (1879, ch. 90), the district attorney-general is not entitled to the fee, if after conviction the judgment is reversed and a nolle prosequi en- tered by the State. Keys v. State, 7 Lea, 408; McHenderson v. An- derson Co., 21 Pickle, 604. 4. Fee where defendant escapes after conviction, and pending an appeal. — Where the defendant is convicted and appeals to the supreme court, pending which he breaks jail and escapes, upon return of capias and retirement of the case, the district attorney-general is only enti- tled to a fee as on nolle prosequi or acquittal. Leach v. State, 8 Lea, 35. See subsec. 8. 6. For felonies, if the defendant is tried, but acquitted. 5 00 7. For misdemeanors in the like event 2 50 8. For each prosecution where the grand jury finds a true bill, but the cause is terminated without a trial 3 00 See notes under subsec. 5 above, and also Code, sec. 7157, and note. Criminal Costs — Compensation of Officers. 327 9. For motions or actions successfully prosecuted against delinquent officers and their sureties, or either 10 00 10. For recovering penalty prescribed against breaches of the revenue laws in relation to licenses, double fees See Code, sec. 1010. 11. For similar motions or actions unsuccessfully pros- ecuted 5 00 12. For prosecuting forfeitures against witnesses, ju- rors, or overseers of roads 2 50 No fee for prosecuting forfeiture and attachment against a wit- ness. — The attorney-general is not entitled to a fee in case of forfeit- ure against a witness and an attachment for him, though the witness is adjudged to pay fine and costs. State v. Lowenstine, 4 Lea, 737. Forfeiture against a witness and attachment for him does not entitle the attorney-general to a fee, where the forfeiture is set aside and the attachment is dismissed at the cost of the county. State v. Foster, 4 Lea, 736. 13. For professional attention to prosecutions instituted by clerk for penalties under inspection laws 10 00 14. P'or proceeding against clerk for delinquency in en- rolling cause 5 00 This subsection is thought to be obsolete. See Code, sees. 4964- 4969, and notes. 15. For proceedings successfully prosecuted against per- sons violating any of the provisions of the reve- nue laws where the penalty amounts to five hun- dred dollars 25 00 16. For successfully prosecuting venders of lottery tick- ets 20 00 17. F'or all other proceedings in behalf of the State, where, by the judgment of the court, the defend- ant pays costs 5 00 No fee on citation of officers to strengthen and increase their bonds.— The attorney-general is not entitled to a fee for successfully prosecuting a citation requiring a public guardian or a constable to strengthen and increase his bond. State v. Miller, 4 Lea, 734; State v. Frost, 4 Lea, 735. 328 Tennessee Tax Digest. 18. For each convicton for violating the law against con- spiracies and formations of trusts (Code, sec. 6622), fifty per cent, of the money actually re- ceived on the fine, and, in addition, a taxed fee of (Code, sec. 6623) 50 00 1. No litigation tax nor attorney-general fee, in contempt cases, when. — Judgment for fine and costs under an attachment for contempt of court for refusal to go before the grand jury when properly sub- poenaed does not authorize the taxation of the State and county liti- gation taxes and an attorney-general fee. Opinion of Attorney-Gen- eral Gates. 2. Fee for removal of constable from office, and for forfeited recogni- zance. — A proceeding to remove a constable from office is a prosecu- tion on behalf of the State entitling the State's attorney to his fee. Fields V. State, M. & Y., 168, 177, 178; State v. Robinson, 8 Yer., 371 (so is a suit by scire facias for a forfeited recognizance). 6377 (4543) 5290. To be taxed to bill of costs.— The fees con- templated in the foregoing section are to be taxed in the bill of costs, and collected from the defendant whenever the pros- ecutions or proceedings have been successful. See Gode, sec. 7617. 1. Fee where agreed verdict of not guilty upon defendant paying costs as on conviction. — The district attorney-general is not entitled, upon agreeing to a verdict of not guilty m a criminal case, to have a judgment against defendant, with his consent, for costs as upon a conviction; and in such case he is entitled to only $2.50 as his fee. .State V. Bachman, 6 Lea, 649; McHenderson v. Anderson Go., 21 Pickle, 604. 2. Counsel appointed to defend entitled to no fee from county or State.-— An attorney assigned to defend a prisoner who is unable to employ counsel is not entitled to have a fee taxed against the county or State. Wright v. State, 3 Heis., 256; House v. VVhitis. 5 P.ax., 692; Henley v. State, 14 Pickle, 686, 687. 6381 (4546) 5294. Joint defense, one tax fee.— If there are two or more defendants in a criminal prosecution, or any ac- tion or proceeding on behalf of the State, and the defendants do not sever in their defense, the attorney-general is entitled to only one tax fee. (1821, ch. 47. sec. 1.) Criminal Costs — Compensation of Officers. 329 1. Only one fee against several joint defendants jointly tried.— The district attorney-general is only entitled to one fee where several de- fendants are jointly indicted and tried. Carroway v. State, 5 Hum., 523. In a proceeding by scire facias against a defendant and his bail, he is entitled to but one fee. State v. Robinson, 8 Yer., 370. Under the act of 1824, ch. 5, sec. 3, it was held that where two persons were jointly indicted for gaming, and separate judgments rendered against them, the district attorney-general was entitled to a fee against each. This was in accordance with the pec-uliar wording of the statute. Pen- land V. State, 1 Hum.. 383. See also Code, sec. 7592. 2. Several fees for several motions.- Where the district attorney- general enters several motions against a sheriff for the nonreturn of several executions, he is entitled to a fee in each case. State v. Mc- Donald, 9 Hum., 606. See Code, sees. 1029-1032, 5768, subsec. 7. 6382 (4547) 5295. And one tax fee for each defense.— When the defendants make several defenses, he will be entitled to one tax fee for each defense. SAME. (Acts 1897. ch. 41— effective January 27, 1897.) Section 1. District attorneys-general to receive salary. — In lieu of all fees, costs, or other compensation, each district at- torney-general in this State shall receive a salary of twenty- five hundred dollars per annum, payable quarterly out of the treasury of the State upon the warrant of the State comp- troller. Sec. 2. Fees of district attorneys-general to go to State; to be reported, and paid over. — The fees now provided by law for said attorneys-general shall, as against the defendant or prosecutor, remain a part of the costs in each criminal case, where costs are in any way adjudged against and paid by the defendant or the prosecutor, and, when collected, shall be paid over to the clerk of the criminal or circuit court of the county where the case is pending, and shall be by him reported and transmitted to the State comptroller at the same time and in the same manner as other State revenue is by law required to be reported and transmitted. 330 Tennessee Tax Digest. Sec. 2a. Attorney-generars fees shall not be remitted or re- leased. — It shall not be lawful for any judge or attorney-gen- eral to remit or release any of the attorney-general's fees pro- vided for in the foregoing section, but the same shall be taxed in the bills of cost, as the other costs of the cause are taxed, and shall not be released or remitted, but shall be paid out of the first moneys collected for costs in each cause. (1905, ch. 533.) 1. Fees of district attorneys taxed as costs for benefit of the State in civil and criminal cases. — The fees allowed and taxed for the district attorneys-general in suit for the collection of collateral inheritance and succession tax are for the benefit of the State, and must be paid into the State treasury. Such fees, as well as all others allowed the district attorneys-general in civil and criminal cases before this stat- ute (Acts 1897, ch. 41), must be paid into the State treasury; and they can receive no compensation in any civil or criminal case, except the salary allowed them by law. Harrison v. Johnston, 1 Gates, 245, 262, 266, 267. 2. Statutes suspended or repealed by implication; State and coun- ties pay no fees to district attorneys. — This statute as construed by the supreme court, as above shown, operates to suspend or repeal by im- plication sections 6378-6380 and 6384 of Shannon's Code, and all other statutes allowing fees for district attorneys to be paid out of the State or county treasury in addition to their salaries; and all fees taxed for district attorneys against parties in civil or criminal cases must be collected and paid into the State treasury. The clerks are responsible for all fees of district attorneys that come into their hands or that by proper diligence ought to come into their hands, and must pay over the same as provided in section 2 of said statute. THE COMPENSATION OF JUSTICES OF THE PEACE IN CRIMINAL CASES. 6387 (4550) 5300. In criminal cases. — For their services in criminal cases the following fees : 1. For taking written affidavit to procure a warrant. . . .$0 10 2. For issuing a warrant (1871, ch. 76, sec. 2) 50 3. For each judgment 75 4. For docketing, filing papers, and making bill of costs. 15 5. For each recognizance, bond, or mittimus 50 6. For taking acknowledgment of sureties for fine and costs under small offense law 10 Criminal Costs — Compensation of Officers. 331 7. For each execution for fine and costs, or costs and copy of costs 25 8. For any other services required by law in criminal cases, the same fees allowed for similar services in civil cases. The following fees in section 6385 of the Code allowed jus- tices of the peace in civil cases may be allowed for similar serv- ices in criminal cases: 3. For issuing a subpoena for a single witness (1871, ch. 76, sec. 1.) 25 4. For issuing a subpoena for each additional witness (lb.) 05 See Code, sec. 7649. Subpoena for witnesses in criminal cases. — For issuing a subpoena in criminal cases for a single witness, twenty-five cents; and for each additional witness, five cents. State v. Henderson, 15 Lea, 274. 5. For entering a continuance 10 12. For each scire facias 25 15. For every other order required by law 10 17. For taking any other bond in discharge of his official duties, for which the fee is not fixed. . .' 50 19. For a commission to take depositions. 25 20. For taking depositions, each (1871, ch. 76, sec. 1) . . . . 1 00 No fee for taking down testimony in committing trial. — A magis- trate is not allowed any fee for taking down testimony in a commit- ting trial. State v. Anthony, MS., Jackson, 1877. The opinion re- ported in this case in 9 Bax., 227, is the dissenting opinion. 26. For every written affidavit not included in some other service 15 27. For every certificate not included in some other serv- ice 20 28. For recording the papers and proceedings in an ac- tion, where required by law, per hundred words. . . 10 29. For a certified copy of any record or paper in his of- fice, per hundred words 10 ?iZ. For each certified transcript of judgments (1871, ch. 76, sec. 1) 25 332 Tennessee Tax Digest. State is liable for costs of search warrant upon probable cause, though property is not found.- Where a search warrant is issued by a justice of the peace upon probable cause, the State is liable for the cost of the proceeding, though the property is not found. State v. Green, 16 Lea, 20. See Code, sec. 7311. FEES OF CLERKS OF THE CIRCUIT AND CRIMINAL COURTS IN CRIMINAL CASES. 6398 (4560) 5310. Fees of clerks of circuit court.— The clerks of the circuit and criminal courts, in addition to the fees al- lowed for any services performed by them as provided in Ar- ticle I [section 6388] of this chapter, may demand and receive for the following services the fees attached : 1. .For each capias *. . . . S.$0 7S See note under subsec. 1 of sec. 6388 of the Code, post, p. 335. 1. Fee for an order for capias to issue, when. — An order for capias to issue is unnecessary, as the law makes it the duty of the clerk to issue a capias upon return of an indictment or presentment, if the defendant is not in custody; but where such an order appears on the minutes, it will be presumed to have been made by the order of the judge; and in this view, a fee of twenty-five cents may be allowed the clerk. Lancaster v.' State, 3 Lea, 653. 2. Capias to be issued without order, when and when not. — After a forfeiture is taken, a capias may be issued without an order. See Code, sec. 7076. But in all other cases an order for an instanter, alias, or pluries capias is proper. This seems to be the proper rule deduci- ble from sections 7065 and 7076 of the Code, and the case of Lancaster V. State, 3 Lea, 653. 3. Only one capias for several offenses, when. — Only one capias to be issued to one county for a defendant indicted for more than one offense of the same class or grade, with the number specified; but full costs may be allowed, if defendant pays the costs. See Code, sec. 7066; Lord v. State, 6 Bax., 627. 2. For presentment or indictment, charging prisoners and pleas S. 25 1. Only one fee under this provision. — Under this subsection the clerk is entitled to only one fee. He is not entitled to divide it, and Criminal Costs — Compensation of Officers. 333 have a fee for the presentment or indictment and another fee for plea and charge. Lancaster v. State, 3 Lea, 653. 2. Dividing entry to make fees not approved.— The practice of dividing one entry of record so as to charge several fees for it— as, for a judgment, order, rule, motion, etc.— is not to be approved, perhaps, to the extent it is sometimes carried. Lancaster v. State, 3 Lea, 654. 3. What service included for one fee.— The fee for this service in- cludes the minute entry of return of indictment or presentment, and for charging prisoner and plea, for all of which only one fee of twenty- live cents can be charged. Lancaster v. State, 3 Lea, 653. 3. For entering and filing every recognizance. S. 25 4. For taking recognizance of record S. 25 1. Fee for entering security of record. — For entering securities of record the clerk is entitled to the fee of twenty-five cents for each security. Lancaster v. State, 3 Lea, 653. 2. This fee is State's cost.— This fee is the State's cost; and if de- fendant is acquitted, or, if convicted, is insolvent, the State or county, as the case may be, must pay the same. Hartman v. State, 2 Shan- non's Cases, 344; Parkinson v. State, 16 Lea, 132. 3. Recognizance of witness is State's cost or defendant's cost, when.-— For the recognizance of a State witness, the State or county is liable for the fee; but for the recognizance of the defendant's wit- ness, the defendant alone is liable. — Ed. 5. For every certified copy of order 25 No fee for certifying costs, etc., under section 7594. — This subsec- tion does not authorize the clerk to charge a fee of twenty-five cents for certifying a copy of the judgment and bill of costs, with the cer- tificate of the judge and attorney-general, under section 7594. Perkins V. State, 9 Bax., 3; State v. Henderson, 15 Lea, 277, 278; State v. Wil- bur, 17 Pickle, 211, 215. See note under subsec. 35 of sec. 6388 of the Code. 6. For motion in arrest of judgment, and order there- on D. 25 7. For entering a judgment against the State or county, where the defendant is shown by execution to be insolvent S- ^^ 334 Tennessee Tax Digest. See Code, sec. 7619, subsec. 5. See also note under subsec. 9 of sec. 6396, and note under subsec. 35 of sec. 6388. State or county not liable for defendant's own costs, when acquitted, unless so adjudged. — The State or county is not chargeable with costs of subpoenas issued for the defendant's witnesses, or for any of his other costs, in criminal prosecutions where the defendant is acquitted and the State or county adjudged to pay the State's costs. The court may, under section 7615, specially adjudge the defendant's costs against the State or county in the case of acquittal. Tucker v. State, 2 Head, 556; Avery v. State, 7 Bax., 330, 331. 9. For copying indictment in cases of felony into the minute book, per hundred words S. 10 10. For jury in cases of felony S. 50 Fee in misdemeanors, and in civil cases. — The fee allowed in mis- demeanors, and in civil cases not otherwise provided for, is ten cents for impaneling the jury. See subsec. 25 under sec. 6388, post, p. 338. 13. For rendering account to county trustee for fines and forfeitures each year 1 00 Fee to be retained. — This fee to be deducted and so shown in the report, and to be retained by the clerk, and not paid over to county trustee. — Ed. 18. For sw^earing sheriff to his account for keeping State prisoners, entering same on minutes, certifying same, etc., to be paid by the sheriff (see sees. 7448 and 7449) 50 19. For services required by section 7607, in regard to bill of expenses for keeping criminal jury, to be paid by the party to whom the bill belongs 50 FEES COMMON TO ALL CLERKS TO WHICH CLERKS OF THE CIRCUIT AND CRIMINAL COURTS MAY BE ENTITLED IN CRIMINAL CASES. 6388 (4551) 5301. Fees of clerks.— The clerks of the several courts of this State are allowed to demand and receive for the following services the fees thereto attached : 1. For every original process, summons, or subpoena to answer $0 75 Criminal Costs — Compensation of Officees. 335 1. The fee is for each subpoena to answer, regardless of number of defendants therein. — The clerk and master is entitled to receive sev- enty-five cents for each subpoena to answer issued, whether it contains one or more defendants; and he is required to issue only one subpoena to each county, embracing therein all the defendants in such county. Nunnelly v. Smith, 4 Bax., 311. See Code, sees. 6149 and 6151. 2. Attachment for witness. — Under this original process may be included the issuing of an attachment for a wit- ness S.D. 75 2. For entering security of record S. 25 Fee for entering surety of record applies, when. — This provision ap- plies when a person comes into court and acknowledges himself surety for costs, or the like, and the same is entered of record; and the fee cannot be charged for entering the name of the surety on the back of the transcript and on the trial docket. Hartman v. State, 2 Shan- non's Cases, 344. 7. For receiving, filing, and entering on docket any bill, petition, declaration, plea, demurrer, or other plead- ing, each S.D. 25 1. No fee for filing papers in bound over case. — The clerk cannot charge a fee of twenty-five cents for filing the magistrate's papers where a defendant is bound over to court to answer a criminal charge. Avery v. State, 7 Bax., 329. 2. No fee for filing bail bond. — The clerk is not entitled to a fee for filing the bail bond taken by the sheriff. Parkinson v. State, 16 Lea, 132, 133. 8. For taking and filing an affidavit to any pleading. S.D. 25 9. For taking and filing any other affidavit in a cause S.D. 05 10. For each order or motion, and order thereon. . . .S.D. 25 1. Fees where warrant in bound over case is dismissed. — Where a magistrate's warrant binding a defendant over to court to answer a criminal charge is dismissed, and the defendant discharged, and it is adjudged that the State pay her own costs, and that the same be cer- tified to the comptroller for payment, the clerk is entitled, under sub- section 27, for judgment for costs, twenty-five cents, and under this subsection, for motion and order to dismiss, twenty-five cents; but he is not entitled to any fee for " order of discharge," nor for " order to certify." Avery v. State, 7 Bax., 332, 333. 336 Tennessee Tax Digest. 2. No fee for order to certify costs. — Clerk is not entitled to a fee of twenty-five cents for order to certify costs. Avery v. State, 7 Bax., 328, 332; Henderson v. Walker, 17 Pickle, 234. 3. No fee for retaxing costs before justice. — The clerk is not enti- tled to a fee for the examination of the justice's warrant and the retax- ation of costs accruinj^ before the magistrate. Perkins v. State, 9 Bax., 2. 4. Fee for motion entered for forfeiture. — Where the attorney-gen- eral makes a motion for forfeiture upon a bond, recognizance, or sub- poena to testify, and such motion or order is entered, the clerk is enti- tled to a fee of twenty-five cents for such entry. Perkins v. State, 9 Bax., 2, 3. 5. Fee for setting aside a forfeiture. — Where a forfeiture on a bail bond, recognizance, or subpoena to testify is, upon motion, set aside without more, the clerk is entitled to a fee of twenty-five cents. If the forfeiture is set aside upon condition that the defendant pay the costs, then the costs should be adjudged against him in the first place, and, if uncollectible, to be taxed to the State. Perkins v. State, 9 Bax., 3. 6. Fee for order staying execution of final judgment. — An order of stay of execution, by consent embraced in the same entry as part of the final judgment, is an addition thereto not contemplated by law as part of the final judgment, and the clerk is entitled to a fee of twenty- five cents therefor as an additional order, Lancaster v. State, 3 Lea, 653, 654. 7. Only one fee for order setting cause, though amounting to a con- tinuance to that day. — Where the court makes an order setting a cause for trial on a certain day, the clerk is entitled to a fee of twenty-five cents for same. But if the same order amounts also to a continuance of the cause to the day set, only one fee can be allowed, not two fees — one for the order setting the cause, and the other for the continuance under subsection 16. Parkinson v. State, 16 Lea, 133. 8. Motion for new trial overruled, defendant's costs. — The fee al- lowed to clerk for motion for a new trial, and the fee for overruling the motion, are defendant's costs, and not the State's costs. Burton v. State, 16 Lea, 135; Hartman v. State, 2 Shannon's Cases, 344. 9. Orders included in this provision. — The orders for which a fee of twenty-five cents each is chargeable under this provision, in addi- tion to those stated in the above notes, are the following: Criminal Costs — Compensation of Officers. 337 (1) Entering on minutes each order respiting jury S.$ 25 (2) Entering on minutes each order fixing amount of defend- ant's bail S. 25 (3) Entering on minutes order for an attachment for a wit- ness S.D. 25 (4) Entering on minutes order for an instanter, alias, or plu- ries capias S. 25 (5) Entering on minutes the daily proceedings of trial in a crim- inal case, including order respiting jury, mistrial, etc., for each separate entry S. 25 (6) Entering on minutes any other order not named herein. S.D. 25 (7) Entering on minutes motion for new trial and order D. 25 ^,8) Entering on minutes motion in arrest of judgment and order D. 25 11. For issuing subpoena for witnesses, for each wit- ness S.D. 10 12. For issuing subpoena to bring in paper or record, etc S.D. 25 13. For taking each deposition S.D. 1 00 14. For every order of publication S.D. 50 15. For entering each cause upon trial docket. S. 10 1. Fees for entering causes on trial dockets. — It is proper for the clerk and master to make out three trial dockets — one for the court, one for the bar, and one for himself — and he is entitled to ten cents for each cause on each docket, making thirty cents for entering each cause; but this fee can be allowed but one time, except when the cause is remanded to the rule docket, and must again be entered on the trial docket, when the same compensation will be again allowed. Nunnelly V. Smith, 4 Bax., 311, 312. See Code, sees. 4666, 5852, subsec. 2; sees. 5740, 6075, 6337. 2. No fee for docketing magistrate's warrant in bound over cases.— The clerk is allowed no fee for docketing the warrant in cases of the State against defendants bound over to court by a justice of the peace to answer a criminal charge, until there is an indictment or present- ment. Until then it does not belong to the trial docket. Avery v. State, 7 Bax., 329, 330. 16. For each continuance duly entered S.D. 25 See note 7 under subsec. 10 hereof. 17. For issuing any notice to the parties required by law S.D. 25 18. For each rule made at office and entered on docket. . . 10 338 Tennessee Tax Digest. Rules made at office and entered on docket embrace what; not ap- plicable to criminal cases. — This provision does not embrace the en- try of steps taken in the cause made upon the docket by the clerk, but only orders or rules made by the clerk at his office, and does not ap- ply to criminal cases. Hartman v. State, 2 Shannon's Cases, 344, 345, 346. 20. For entering a nolle prosequi or dismissal D. (Acts 1897, ch. 20) 25 22. For entering special verdict, or judgment on de- murrer, or plea in abatement S.D. 50 23. For entering fine against juror D. (juror) 25 24. For setting same aside D. (juror) 25 25. For impaneling a jury S. 10 Applicable in misdemeanors, but not in felonies. — See subsec. 10 under sec. 6398, ante, p. 334, where a fee of fifty cents is allowed in felony cases; and this provision allowing a fee of ten cents must be for impaneling a jury in misdemeanor cases, and in civil cases not otherwise provided for. — Ed. 26. For entering a final judgment at law, and ordering ex- ecution 75 See note 6 under subsec. 10 hereof. Property or money judgment as to property involved in crime. — For entering on minutes judgment against a convicted felon for the restitution of the property involved in the crime or for its value and damages, and awarding execution (Code, sees. 7208 and 7209), to be paid by the defendant, and not by the State or county, the clerk is entitled to a fee of seventy-five cents. — Ed. 27. For entering a judgment for costs only ^ D. (1897, ch. 20) 25 28. For entering a judgment nisi D. 50 31. For every fieri facias 40 32. For every venditioni exponas, writ of possession, dis- tringas, or other writ in execution or enforcement of judgments or decrees 75 34. For every scire facias S.D. 50 35. For copies of any pleadings, papers, and proceedings in a cause, per hundred words S.D. 10 L No fee for copying bill of costs on minutes. — This subsection does not authorize the clerk to charge ten cents per hundred words. k Criminal Costs — Compensation of Officers. 339 for copying bills of cost on the record or minutes of the court before judgment that the county or State shall pay same, where the defendant is insolvent. The fee allowed the clerk in such case is the seventy- five cents provided in subsection 7 of section 6398. State v. Hender- son, 15 Lea, 277, 278; State v. Wilbur, 17 Pickle, 211, 215, 216. See also note under subsec. 5 of sec. 6398, and note 2 under subsec. 5 of sec. 6396. 2. Fees for what services under this provision. — Under this pro- vision may be included the following: (1) Copy of indictment or presentment for a defendant in jail (Code, sec. 7168, and note), per one hundred words S. 10 (2) Certified copy of sentence furnished to warden of peniten- tiary (Code, sec. 7515), per one hundred words S. 10 (3) Certified copies and statements of sentence to workhouse, for superintendent thereof, and for the county judge (Code, sec. 7420), per one hundred words 10 Z7 . For a transcript of a record, per hundred words. .S.D. 10 See also Code, sec. 4564. 1. Clerk must be paid for supplying lost transcript. — Where the clerk has m.ade out one transcript of the record, and filed same with the clerk of the supreme court, which is lost, he cannot be compelled to make out and file another transcript, without the payment of the legal fee therefor. Telegraph Co. v. Ordway, 8 Lea, 558. 2. Fees and costs forfeited on account of bad transcript. — The clerk will not be allowed any compensation for making out a transcript of the record, when not properly done — as, on account of irregular ar- rangement and general confusion, or where the venire facias is omitted from the transcript, or where badly made up. State v. White, 5 Sneed, 620, 621, 622; McGavock v. Puryear, 6 Cold., 44, 45; Bass v, Shurer, 2 Heis., 216, 217; Sible v. State, 3 Heis., 137, 140; Staunton v. Harris, 9 Heis., 579, 585; Jones v. Sharp, 9 Heis., 660, 665, 666; Garwood v. Cooper, 12 Heis., 101, 103; Maynard v. State, 9 Bax., 226; Telegraph Co. V. Ordway, 8 Lea, 560. Clerk of circuit or criminal court may forfeit all his costs on account of the bad transcript. Sible v. State, 3 Heis., 140. See Code, sees. 6394, 6395, 7217, and 7218. 3. Fees forfeited for failure to make proper entries. — By failure to make the proper entries as required by sections 7217 and 7218 of the Code, the clerk shall forfeit all tax fees and costs to which he would otherwise be entitled. Maynard v. State, 9 Bax., 225, 226; Maynard V. State, 2 Shannon's Cases, 279. 340 Tenitessee Tax Digest. 38. For affixing seal of court to a record .S.D. 50 1. Fees for affixing seals to records. — For affixing the seal to each certified record required to be made out, the clerk is entitled to the said fee of fifty cents. He was entitled in this case to fifty cents for each of three seals — one on certified judgment to sheriff, one for court below, and one for the certified opinion. State v. Self, 6 Bax., 212. 2. Fees included in this provision. — Under this provision, the above fee may be charged for the following: (1) Seal of court to transcript on appeal to supreme court. . . .S. 50 (2) Seal of court to transcript for warden of penitentiary in fel- ony cases S. 50 (3) Seal of court to other records or instruments when required by law or the parties S.D. 50 39. For motion for new trial, and orders thereon D. 25 In Burton v. State, 16 Lea, 135, and in Hartman v. State, 2 Shan- non's Cases, 344, it was held that the fee allowed to the clerk for mo- tion for a new trial, and the fee for overruling the motion, are de- fendant's costs, and not the State's costs. The same rule would apply to a motion in arrest of judgment, and orders thereon. — Ed. 40. For entering an order of appeal, and taking appeal bond S. 75 41. For filing the record or papers brought up from a lower court for the correction of errors (in criminal cases under Code, sec. 6971) 75 43. For writs of error, if actually issued 50 44. For writs of certiorari 50 45. For writ of supersedeas 50 48. For making out and entering on execution docket each bill of cost 50 Fee for retaxing costs of inferior court and also for costs in su- preme court. — The clerk of the supreme court is entitled to a fee of fifty cents in each retaxing and entering on the execution docket the bill of costs sent up from the inferior court, and another additional fee of fifty cents for taxing and entering the bill of costs accrued in the supreme court. Williams v. State, 3 Heis., 313. 49. For copying bill of costs on back of execution 25 51. For receiving and paying over all taxes, fines, for- feitures, and amercements, two and a half cents on the dollar. Criminal Costs — Compektsation or Officers. 341 52. For each probate of a witness S.D. 05 53. For each witness ticket, to be paid by the party ap- plying for the same 05 56. For transcript of judgment and bill of costs for comp- troller or treasurer, per one hundred words S. 10 1. Costs in habeas corpus cases paid by State or county, when; and clerk's costs shall be what.— In habeas corpus cases, where the costs are not adjudged otherwise than against the State or county, the State must pay the costs when the charge is a felony, and the county, when it is a misdemeanor. And in such case the following fees should be taxed on behalf of the clerk: (1) Filing petition (Code, sec. 6388, subsec. 7) 25 (2) For taking and filing affidavit to petition (Code, sec. 6388, subsec. 8) , 25 (3) For issuing writ (Co.de, sec. 6388, subsec. 7) 75 (4) Bill of costs (Code, sec. 6388, subsec. 48) 50 (5) For transcript to county judge (Code, sees. 5540 and 5543) . . 25 But the following fees should not be taxed against the State or county : 1. For judgment 75 2. For order to certify (Code, sec. 6388, subsec. 10; Avery v. State, 7 Bax., 328) 25 3. For certificate (Perkins v. State, 9 Bax., 3) 25 4. For seal (Code, sec. 7595) 50 Henderson v. Walker, 17 Pickle, "229, 232, 233, 234. See Code, sees. 7619-7621, 7022. 5542-5545. 2. How bills of cost should be made out. — All items in bills of cost should be specifically set out so as to show whether such items are "State cost," •' county's cost," or "defendant's cost" in all cases where such cost may have been made either by the State or the de- fendant. Such items, for instance, as subpoenas, attachments, probates of witnesses, continuances, orders on minutes, etc., should show af- firmatively whether it was made by the State or defendant. The ob- servance of this rule will expedite the final payment of bills of cost by the comptroller. 3. Explanation. — The fees for certain specific services in addition to those specifically allowed by statute, and which have been allowed by decisions of the supreme court, the opinions of the attorney-general, and adopted by the comptroller, are set out in the notes as services included within the provisions of the statute. Fees marked '* .S." are " State cost," and can be collected from the State or county, in proper cases, when not paid by defendants. Fees marked ** D." are "defendants' costs," chargeable to the defendants only, and can in no case be collected from the State or county without 342 Tennessee Tax Digest. a special judgment of the trial court. See Shannon's Code, sec. 7615. Fees marked *' S.D." are " State costs," if made at the direction and instance of the State, and may become payable by the State or county; but if such costs are made by the defendant, then he alone is liable for them, and not the State or county. COMPENSATION OF CIRCUIT COURT CLERKS. (1903, ch. 255— effective April 15, 1903.) Section 1. Salaries. — The circuit court clerks of the State shall be paid the following salaries per annum, to wit : In coun- ties having a population of fifteen thousand (15,000) and un- der, five hundred dollars ($500) ; in counties having a popula- tion of more than fifteen thousand (15,000) and less than twenty thousand (20,000), seven hundred and fifty dollars ($750) ; in counties having a population of more than twenty thousand (20,000) and less than thirty-five thousand (35,000), one thousand dollars ($1,000) ; in counties having a population of more than thirty-five thousand (35,000) and less than fifty thousand (50,000), twelve hundred and fifty dollars ($1,250); in counties having a population of more than fifty thousand (50,000) and less than sixty thousand (60,000), fifteen hundred dollars ($1,500) ; in counties having a population of more than sixty thousand (60,000) and less than one hundred thousand (100,000), twenty-five hundred dollars ($2,500); in counties having a population of more than one hundred thousand (100,- 000), five thousand dollars ($5,000), the population of the same being determined by the federal census of 1900, and each sub- sequent federal census. Sec. la. Itemized statement of fees. — Provided, that the said clerks shall file annually, on the first day of January, an item- ized statement sworn to with the county judge or chairman, showing the amount of fees paid into their respective offices, and in all counties where the total amount of such fees fail to equal the salary above provided, the difference between the total amount of said fees and the salary above provided for each particular clerk shall be paid by the county upon a war- Criminal Costs — Compensation of Officers. 343 rant drawn by the county judge or chairman out of the county treasury. Sec. 2. Fees in excess of salary retained. — When the total amount of fees exceeds the salary as hereinbefore regulated, the said clerks shall be allowed to retain such excess. FEES OF SHERIFFS IN CRIMINAL CASEs! 6402 (4564) 5316. Fees of sheriff.— The sheriff is allowed to demand and receive for the following services the fees at- tached : 1. For executing -every capias, summons, or other lead- ing process $1 00 Fee for executing justice's warrant in criminal cases. — The fee al- lowed an officer for executing a justice's warrant in a criminal case is regulated by this subsection, and is, therefore, one dollar. Subsection 26 hereof applies only in civil cases. Burton v. State, 16 Lea, 135. 2. For returning any of the above writs not found 25 3. For every bail bond 25 This fee State's cost. — The sheriff's fee for taking bail bond is State's cost, and the State or county must pay same, where the defend- ant is acquitted, or, if convicted, is insolvent. Burton v. State, 16 Lea, 132; Acts 1897, ch. 20. 5. For serving a subpoena for each witness 25 6. For returning same not found, for each 10 7. For serving every scire facias 1 00 8. For returning same not found -25 9. For commitment and release 50 10. For summoning jurors of a regular venire, for each juror summoned, to be paid by county (2d ex. ses., 1882, ch. 11). ; 15 11. For special venire by order of court, each juror sum- moned, to be paid by the county (lb.) 05 Fees for special venire. — If a special venire is ordered during the term of the court by the judge for the trial of any cause, the sheriff is entitled to five cents for each juror summoned, and his compensation is not confined to those accepted on the jury. Smith v. State, 6 Bax., 344 Tennessee Tax Digest. 537. This case was determined when the law allowed fifteen cents instead of five cents, but the principle established is the same. This case was overruled by Girdner v. State, 7 Lea, 435; but the act of 1882, 2d ex. ses., ch. 11, was passed to obviate this latter case, and to make the fee five cents instead of fifteen cents. 12. For summoning each justice and juror 25 15. For serving and attending any person on writ of ha- beas corpus, each day (see, also, subsections 40, 41) 2 00 17. For summoning a garnishee. . '. 50 18. For levying an execution on property 1 00 19. For collecting money on execution, on the first hun- dred 4 00 20. For every hundred over one and not exceeding three . 3 00 21. For every hundred over three 2 00 22. For keeping each head of horses, mules, or jacks levied on by execution or attachment, per day 25 23. For each head of cattle, per day 05 24. For furnishing bill of fees, when required, and receipt therefor (section 457) 12^ 25. For each day's attendance on court 2 00 Sheriff's fee for each day's attendance on court. — The sheriff is entitled to two dollars per day for each day's attendance on court; and where he has only been paid one dollar and fifty cents per day, he is entitled to the additional compensation of fifty cents per day, and may recover the same in a. suit therefor against the county, not- withstanding the fact that he collected and received the amount al- lowed at the rate of one dollar and fifty cents per day. Collier v. Montgomery Co., 19 Pickle. 705, 717, 718; Connors v. Shelby Co., 5 Cates, 177, 181. 26. For serving justice's warrant, each defendant 50 Applies to civil cases only. — This provision applies to civil, and not criminal, cases. Subsection 1 prescribes the fee in criminal cases. Burton v. State, 16 Lea, 135. 27. All sheriffs or officers conveying prisoners arrested in this State on a magistrate's warrant, capias, or oth- er leading process, from one county to another, or for conveying prisoners to supreme court, or for conveying prisoners from one county to another for safe-keeping, or for conveying prisoners to the asy- Criminal Costs — Compensation of Officers. 345 lum for the insane, under criminal indictment, shall receive, as compensation for their services, and they shall be entitled to no other compensation what- ever for said services, per mile each way, going and returning, for the trip, regardless of the number of prisoners (1891, ch. 144, sec. 1) 08 Before this statute, the sheriff was entitled to his mileage for each prisoner carried on the one trip. Evans v. State, 1 Pickle, 269. See also State v. Henderson, 15 Lea, 276, 277; Roberson v. State, 16 Lea, 133. To obviate these decisions, this statute was doubtless passed. 28. For each guard actually and necessarily employed, not exceeding one for each prisoner, per mile each way for their services, going and returning (lb.) ; . 05 29. For each prisoner, per mile one way, or the distance actually traveled with the prisoner (lb.) 03 Jail guards. — For compensation and expenses of jail guards, see Code, sees. 7377-7379. 30. For carrying to prison and guarding defendant ar- rested by justice's warrant, each day 1 00 1. Fee allowed for " one night."— This fee is allowed for " guarding one night," a night being a reasonable fraction of a day. Roberson v. State, 16 Lea, 133. 2. A reasonable part of a day required. — To come within this pro- vision, there must be a guarding for a reasonable part of a day, ren- dered necessary by the circumstances. Burton v. State, 16 Lea, 136. 3. Guard must be an officer or employed by a named officer. — The fees to guards are allowed to officers in charge of prisoners, and it should appear that the person for whom the fee is taxed is an officer, or a guard employed by a named officer. Burton v. State, 16 Lea, 136. 4. No fee " for guarding to jail " without more. — An item in a bill of cost of one dollar to an officer '' for guarding to jail " is not war- ranted by this provision or any other. Burton v. State, 16 Lea. 136. 31. For conveying a convict to the penitentiary, for every twenty-five miles he may necessarily travel in go- ing and returning 3 00 32. For each guard ^ ^^ 346 Tennessee Tax Digest. 33. For each convict 1 00 34. If the convict is conveyed by the sheriff, by railroad, the compensation to the sheriff shall be for himself eight cents a mile, for each guard six cents, and for each convict five cents per mile, going and return- ing. In this case, also, one of the guards is dis- pensed with, unless otherwise ordered by court. See sec. 6403. 35. For executing every condemned person, including ev- ery necessary expense and service 30 00 This fee to be paid by the State, when. — This fee should be taxed and paid "as other costs; and where it cannot be collected out of the estate of the person executed, the same should be paid by the State just as other costs are paid in cases of insolvency of defendants or return of nulla bona. Opinion of Attorney-General Gates. 40. For conveying a prisoner before a judge on a writ of habeas corpus, per mile, going and returning (1859- 60, ch. 101, sec. 1)... 10 See subsec. 27 hereof. 41. For guards, not exceeding two for each prisoner, each, per mile, going and returning (lb. ; see, also, subsecs. 15, 28) 05 EXPENSES FOR BRINGING BACK ABSCONDING CRIMINALS. (1901, ch. 96— effective March 11, 1901.) Section 1. Expenses to be paid by county judge or chair- man, when. — When a warrant shall be sworn out before any justice of the peace of this State, or any indictment returned by a grand jury, charging any person with a felonious crime above the grade of petit larceny, and such person shall have absconded beyond the borders of this State, the county judge or chairman of county court of such county in which said crime shall have been committed shall pay to the sheriff of such county, who shall have gone for such person and re- Criminal Costs — Compensation of Officers. 347 turned with him or her to such county, three cents per mile for each mile necessarily traveled in going and coming, and also his other actual and necessary expenses, the whole in no event to exceed the sum of $75; provided, that the com- pensation hereby fixed shall apply only to mileage and ex- penses outside the State, and for the distance inside the State going and coming the same mileage shall be taxed in the bill of costs as is allowed for carrying prisoners arrested in this State ; and the receipt of such sheriff so returning such person charged with a felonious crime shall be a voucher, for the amount thereof, of such chairman or county judge in his set- tlement with the county; provided, that no designation by the chairman of the county court or county judge shall be neces- sary to authorize the sheriflf to act and draw pay under this act, and that the chairman of the county court or county judge shall have no power to designate any other person. (1905, ch. 447.) Sec. 2. Itemized and sworn statement of expenses to be made. — Such sheriiT or other officer so designated by the county judge or chairman shall make out an itemized state- ment of his actual and necessary expenses and swear to same before he shall be paid such expenses. Expense of bringing back absconding criminals from beyond lim- its of State not chargeable to State, but to counties, when. — The State is not chargeable with the costs or expenses for bringing back ab- sconding criminals from beyond the limits of the State; but in certain cases, as provided by Acts 1901, ch. 96, as amended by Acts 1905, ch. 447, the county is required to pay such costs. Opinion of Attorney- General Cafes. 6403 (4564d) 5317. Conveying prisoners to penitentiary. — Sherififs or other county officers conveying convicts to the pen- itentiary shall be allowed pay and mileage only for the guards who actually accompany the prisoners, and pay and mileage shall only be received for one guard for each prisoner. (1870- 71, ch. 6.) 34^ Tennessee Tax Digest. Other statutes noted, and operation limited. — See Code, sections 7630-7634, for fuller provisions as to costs for conveying convicts to penitentiary. But see Code, sections 7239-7246, devolving this duty upon the appointee of the board of prison commissioners, and shov^- ing that the sheriff can perform this duty only upon the default of such appointee. — Ed. FEES OF CORONERS. 6407 (4569) 5320. Fees same as those of sheriff.— The cor- oners in this State are allowed to demand and receive the same fees as the sherififs for similar services. 6408 (4570) 5320. Each inquisition. — They are also entitled to demand and receive, for each inquisition, five dollars. FEES OF CONSTABLES. 6409 (4571) 5321. Same fees as sheriff. — Constables are en- titled to demand and receive the same fees as sherifTs for sim- ilar services performed by them according to law, where not expressly modified in this article. 6410 (4572) 5322. Also fees as follows. — They are entitled to demand and receive for services as follows: 8. For attending on grand jury, or waiting on court, per day $2 00 1. Statutes amended and repealed. — By the act of 1866-67, ch. 3, and the act of 1867-68, ch. 14, justices were entitled to $2 per diem w^hile attending quarterly courts, and jurors $2 per diem while attending any of the courts. The said act of 1866-67, ch. 3, was so amended by act of 1867-68, ch. 67, sec. 1, as to allow ofificers serving courts a like per diem. The said acts of 1866-67, ch. 3, and of 1867-68, ch. 14, were so amended by act of 1875, ch. 42, as to read as set out, which allows the justices and jurors only $1.50 per diem. 2. Constable allowed two dollars per day for waiting on grand jury, but nothing extra for serving subpoenas. — A constable waiting on the grand jury is entitled to two dollars for each day on which he per- forms any bona fide services for the grand jury, such as serving sub- poenas, whether the grand jury is actually in session or has tempo- rarily adjourned; but this compensation covers all services, including the service of subpoenas. Connors v. Shelby Co., 5 Cates, 177. See also Collier v. Montgomery. 19 Pickle, 705. 717. 718. Criminal Costs — Compensation of Officers. 349 FEES OF JAILERS. 6412 (4574) 5323. Fees of jailer.— The several jailers in this State are entitled to demand and receive the follov^ing fees for services: 1. For each prisoner for whom he provides good, whole- some water, diet, and bedding, each day (1875, ch. 43, sec. 1) . . .$ 40 2. For each turnkey (lb.) 1 00 Only two turnkeys shall be allowed for each prisoner; no allowance shall be made to jailers by county courts, unless a committee of three justices, to be appointed by the county court, shall have reported to the said court that the jailer has complied with the provisions* of this article in reference to food, water, and bedding. (lb.) Acts 1865-66, ch. 27, was repealed byActs 1875, ch. 43, sec. 2. 6413 (4574b) 5324. For feeding witnesses, forty cents per day. — Jailers shall be allowed the same fees for keeping wit- nesses committed to jail under section 7030 of this Code as they are allowed by section 6412 for keeping prisoners, the same to be taxed in the bill of costs and paid in the same man- ner as other costs in the same cases. (1859-60, ch. 121.) COMPENSATION OF WITNESSES— CODE PROVISIONS. 5617 (3829, 3830, 3830a) 4582. Per diem, mileage, tolls, and ferriage. — Witnesses in courts of record shall receive a com- pensation of one dollar per day for each day's necessary at- tendance ; and when they reside at a greater distance than ten miles, four cents per mile for going to and returning from court, and tolls and ferriages as allowed by law ; but mileage and ferriage shall be allowed only for one trip going and re- turning during the term of any court, unless the witness is discharged by the parties, to return, and does return, upon a given day. (1859-60, ch. 22.) Are witnesses entitled to tolls?— In section 3829 of the Code of 1858, witnesses are entitled to tolls, while in Acts 1859-60, ch. 22, no pro 350 Tennessee Tax Digest. vision is made for tolls. The language of this section as above printed is that of said Acts 1859-60, ch. 22, with the exception that the words " and tolls " are interpolated. This is done, because the same were in said section 3829 of the Code of 1858, and the said Acts 1859-60, ch. 22, purported to increase the pay of witnesses; and not to retain these words would be to lessen the compensation of witnesses to that extent. But this question is not free from doubt, and it may be that witnesses are not entitled to tolls under this statute. Witnesses under sections 5618 and 5619 of the Code are entitled to tolls. 5618 (3830b) 4583. Attendance in another county. — All wit- nesses attending, under summons, any court of record in any county in this State other than the county in which said wit- ness or witnesses live shall be entitled to the sum of one dol- lar and a half per day for such attendance, and five cents per mile for every mile traveled in going to and returning from such court, and all necessar}^ tolls and ferriage. (1867-68, ch. 11, sec. 2.) See Acts 1897, ch. 20, sec. 1, subsec. 3, last part, and note 6 there- under, ante, p. 320. 5619 (3831, 3831a) 4584. Before justice.— Every witness summoned before a justice of the peace is entitled to fifty cents for each day's attendance ; and when summoned to attend in another county from that of his own, shall be entitled to five cents per mile for every mile in going to and returning from said county, and all necessary tolls and ferriage. (1843-44, ch. 112, sec. 1 ; 1867-68, ch. 11, sec. 1.) 5621 (3833) 4586. When probate of attendance taken.— The clerks of the different courts in this State may take probate of witnesses' attendance at any time between the commencement and the final decision of the cause, either in vacation or in term time. (1845-46, ch. 164, sec. 1.) See Code, sec. 7369. 1. Witness not legally subpcjenaed. — Witnesses, attending without being legally subpoenaed, are not entitled to prove their attendance and have it taxed in the bill of costs, but must look, for their compen- sation, to the party requesting their attendance as witnesses. Hopkins Criminal Costs — Compensation of Officers. 351 V. Waterhouse, 2 Yer., 230; State v. Lacy, 3 Hum., 227, note; Moore V. McLemore, 2 Shannon's Cases, 161; Lancaster v. State, 3 Lea, 655. And their attendance and mileage must be proved in open court. State V. Lancaster, 3 Lea, 654, 655. 2. Presumption of subpoena from proof of attendance.— Where the attendance has been proved, the presumption is that the witness wras subpoenaed, although the process cannot be found. But if the court is satisfied that he was not subpoenaed, his costs should be stricken out. A memorandum of the attendance of witnesses, kept by the clerk, may, it seems, be looked to by the court. Hopkins v. Water- house, 2 Yer., 323, 324, 325; Moore v. McLemore, 2 Shannon's Cases, 161; Burson v. Mahoney, 6 Bax., 306, 307. 3. Witness must elect in which case he will have mileage and fer- riage. — Where a witness is entitled to and allowed mileage and fer- riage in one case only, he must elect in which case he will have it, and prove as to mileage and ferriage in that case alone. Hopkins v. Waterhouse, 2 Yer., 323, 324. • 4. Attendance proven, though compelled to attend court for other business. — A witness is entitled to prove his attendance, although he was a party to another suit, which would, of itself, have compelled him to attend court. Hopkins v. Waterhouse, 2 Yer., 323, 325. A party to a suit is not entitled to compensation as a witness. Grub v. Simpson, 6 Heis., 92. 5. But one attendance, though summoned by both parties. — Wit- ness summoned by both parties is entitled to but one attendance. Hopkins v. Waterhouse, 2 Yer., 230. 7366 (5391) 6233. As in civil cases. — AU w^itnesses appearing for the State on a subpoena, either before a magistrate or the grand jury, or on an indictment found, are entitled to the same compensation for their attendance as in civil cases. (1855-56, ch. 63, sec. 2.) 7367 (5392) 6234. Witnesses before grand jury.— The com- pensation of a witness summoned before a grand jury, where no indictment is found upon his evidence, shall be paid by the county in which he is summoned. (lb.) 1. Judgment against State for costs on ignored indictment reviewed by appeal or writ of error only. — Where an indictment is ignored by the grand jury, and judgment is rendered against the State for the 352 Tennessee Tax Digest. costs, including that of the witnesses attending in obedience to sum- sons, in pursuance of an order indorsed on the indictment, a motion will not lie at the next term for judgm.ent against the county for these costs. If such judgment against the State is erroneous, it can only be reviewed by the supreme court upon appeal or writ of error, and it cannot be reviewed upon appeal from the judgment on such motion refusing to tax the county with the costs. State v. Dickson, 2 Shan- non's Cases, 486. 2. County, and not State, is liable for witness fees on ignored in- dictrrent. — Compensation of witnesses before the grand jury, where no indictment is found upon their evidence, shall be paid by the county, and not the State, though the charge is a felony. State v. Treadway, 3 Lea, 55; State v. Green, 16 Lea, 22, 23. 7368 (5393) 6235. Two cases. — No witness can prove attend- ance at any one term of the court in more than two criminal cases. (1843-44, ch. 215, sec. 6.) See Code, sec. 5622; Acts 1903, ch. 100, as to civil cases. 1. Statute enforced. — It makes no difference about the length of the term, nor that the cases were tried at different times during the term. State v. 6'Haver, 15 Lea, 47. 2. Attendance in one case only before statute. — Before statute al- lowing attendance in more than one case, witnesses were allowed their attendance in one case only. Hopkins v. Waterhouse, 2 Yer., 323, 324; State v. O'Haver, 15 Lea, 47, 48. 7369 (5394) 6236. Probate of attendance.— He shall prove his attendance, in open court, by oath, before the clerk, that he has not, directly or indirectly, procured himself to be summoned as a witness ; that he was legally summoned on behalf of the State, and has verily attended the court as a witness the num- ber of days claimed. See Code, sec. 5621. Statute enforced.— This statute must be rigidly enforced. If not complied with, the taxed fees, mileage, and tolls of the witnesses may be stricken out on motion. Lancaster v. State, 3 Lea, 654, 655. 7640 6481. Witness fees allowed.— No fees shall be allowed witnesses for attendance on any other day or days than those Criminal Costs — Compensation of Officers. 353 fixed in the subpoena or in said orders of court. Not more than tliree days' attendance shall be taxed in any one week in favor of any one witness in one case, excepting witnesses attending from other counties, unless required to remain more than three days by order of the court. (lb.) 7641 (5597) 6482. Subpoena,— The clerk shall issue no sub- poena for a witness except such as are so marked or subse- (|Uently directed by the district attorney, in writing, to be sum- moned. See Code, sec. 7359. 7642 (5598) CAK^. Certificate.— The district attorney and judge shall certify the attendance of no witness against the State, except such as shall be so indorsed or subsequently di- rected by the district attorney, in writing, to be summoned, nor without actual inspection of the orders. 7643 (5599) 6484. Comptroller.— The comptroller shall issue no warrant for the payment of costs of witnesses, unless the certificate of the judge and district attorney show that such inspection took place. 7648 (5604) 6489. Witness.— Witnesses who live within ten miles of the court can only claim one day's attendance before the grand jury, unless longer retained by order of the court. (Id., sees. 2, 4.) 7649 6490. Number witnesses allowed before justices and recorders. — No justice of the peace, or mayor, or recorder of an}' incorporated city or town, shall, in misdemeanor causes, have the right to tax against the county the costs either for issuing subpoena, service, for jof] the same, or attendance of more than four witnesses, unless, before issuing of the sub- ptiena, it shall appear by affidavit of the prosecutor, person aggrieved, or some other party, that such additional witnesses are necessary, which affidavit shall be filed with the papers in the cause; and in case the defendant is bound over, or the cause appealed to the circuit court, such affidavit shall be filed with the papers in such court. (1881, ch. 116.) INDEX. ABSCONDING CRIMINALS. ' Expense for bringing back (sees. 1, 2, n.) 346, 347 ABSTRACT COMPANIES. Privilege taxes for pursuing the business (sec. 4) 19 Lawyers not taxed for furnishing abstracts, when; but their connection with firms and corporations does not exempt such firms and corporations, when (n.) 19 ACTUAL CASH VALUE. Terms defined (sec. 4) 118 All property to be assessed at (sees. 4, 6 (3) (4), n. 1) 118, 120 ADVERTISEMENT. Of land for sale for taxes; form of notice; four weekly inser- tions (sec. 50) 214, 215 Of tax sales to be shown (n.) 215 Of delinquent land for taxes of 1906 and all other years (sec. 74) 245 Of railroad, telegraph, and telephone properties for sale for taxes (sec. 16) '. 276 ADVERTISING COMPANIES. Privilege taxes against (sec. 4) * 19 AMUSEMENTS. See Circuses and Menageries. ANNUITIES. Carlisle Annuity Table, showing the present value of a life an- nuity of one dollar, at six per cent, interest, at any age from birth to 100 years (n. 3) 101 Table showing present value of an annuity certain of $1 pay- able at the end of each year for any number of years not ex- ceeding 40, discounting at the rate of six per cent, compound interest (n. 8) 103 APPEALS. From county to circuit court as to inheritance taxes (sees. 12, 14d, 15b) 98, 106, 107 Cause heard de novo in circuit court (sees. 12, 15b) 98,. 107 From back assessments must be tried within ten days (n.) 174 From back assessments to have precedence (sec. 818) 174 12 356 Index. From county trustees and county court clerks to State board of equalization (sec. 37 (5d)) 192 State board of equalization to hear appeals from back assess- ments or reassessments made by county trustees and county court clerks; appeals to be perfected and heard, when (sec. 37 (11)) - 196 Without bill of exceptions does not act as a supersedeas where the judgment is for a penalty less than death or imprison- ment for life (sec. 7629a) 324 APPRAISER UNDER INHERITANCE TAX LAW. To be appointed by county court clerk; his duties (sec. 12) 98 Guilty of misdemeanor, when (sec. 13) 104 Oath and compensation of (sec. 23) Ill ARTISTS AND PHOTOGRAPHERS. Privilege taxes against (sec. 4) 20 ASSESSMENT FOR TAXATION. Made how often (sec. 3) 118 At actual cash value (sec. 4) 118 Basis of (sec. 5) 118-120 Of real estate must show what (sec. 6) 120, 121 Rules governing in assessment of real estate; parol testimony to supply description (sec. 7) 121 Personalty to be assessed under what classification (sees. 8-8b) 121-123 To be made upon failure to fill out and return schedule (sec. 12e) 132 Names to be noted as assessed without schedule, and notice to taxpayer noted (sec. 12f) 132 Such assessment is conclusive against taxpayer not appearing before assessor or board of equalization (sec. 12g) 133 Separately and in rotation in districts or wards (sec. 13) 134 New county assessment to be copied for old county to pay debt or interest in old county (sec. 13a) 134 Power of county judge or chairman to cite and examine fidu- ciary upon failure to return schedule and to make assess- ment (sec. 17) 137 Assessment list to be returned to county court clerk, when; rec- ords of his office (sec. 18) 137 Error in transcription corrected by certificate of assessor (sec. 20d) 139 Assessment schedule to be returned under oath by president or chief ofilcer, and to show what (sec. 21a) 141 Remedy of taxpayers for disproportionate assessments (n.) 194 County trustee to assess escaped property, when, and report it as "picked up" taxes; assessments limited to current year and for three years preceding (sec. 38) 200 Index. 357 Must show items and amounts in dollars and cents; mere fig- ures without more are insufficient, and render sale void (n. 5) . 217 To owner of redemption after tax sale (sec. 54b) 218 Description in, and in tax sales (n. 4) 234 ASSESSMENT LAW. See General Assessment Law. ASSESSMENT OF RAILROAD, TELEGRAPH, AND TELE- PHONE PROPERTIES FOR TAXES, AND COLLECTION THEREOF. Office of State tax assessors created (sec. 1) 265 Appointment and qualification (sec. la) 265 Oath (sec. lb) 265 Compensation and expenses (sec. Ic) 266 Organization; secretary and his pay (sec. Id) 266 Pay limited (sec. le) 266 Quorum (sec. If) 266 Corporations to file schedule (sec. 2) 267 Railroad schedules (sec. 2a) 267 Telegraph and telephone schedules (sec. 2b) 267 Schedules to be verified and filed; penalty for failure (sec. 3)... 268 Comptroller to furnish schedules (sec. 4) 268 Valuation of property, how ascertained; power to examine wit- nesses and books, etc. (sec. 5) 268 Perjury; failure of witness to attend is a misdemeanor; fine (sec. 5a) 269 Road and lines include what (sec. 6) 269 Distributable property denned, and assessed, how (sec. 7)...... 269 Bonds owned by railroads are assessable as distributable prop- erty; back assessments and reassessments to be made by rail- road commissioners (n. 1) 270 Same rule applicable to telegraphs and telephones (n. 2) 270 Separate valuations on certain parts of roads (n. 3) 27.0 Roadbed, franchise, and superstructure assessed together (n. 4) . 270 Right of way and franchise of street railway, etc., how as- sessed (n. 5) 270 Distributable propert}'-, how valued (n. 6) 270 Distributable method of assessing railroads approved (n. 7) . . . . 270 Exemption of $1,000 allowed but once (n. 8) 271 Distributable railroad property includes what (n. 9) . . ., 271 Localized railroad property includes what (n. 10) 212 Mileage basis of valuation; elements of valuation to be con- sidered (n. 11) 212 Localized property defined and assessed, how (sec. 8) 272 Minutes to be kept; reports, documents, and proof to be filed (sec. 9) . ■ 272 Additional reports to be reduced to writing (sec. 10) 212) 35^ Index. Records of proof of values to be completed by the assessors (n.) 273 Assessments to be completed, when; exceptions and additional evidence acted on; all to be filed, when (sec. 11) 273 Board of equalization; duty and powers (sec. 12) 274 Mandamus by board of equalization against railroad commis- sioners (n. 1) 274 Assessment is not complete until passed on by board of equali- zation (n. 2) 274 Board of equalization to certify valuations to the comptroller (sec. 13) 274 Not final, when (n. 1) 275 Assessment upon written proof (n. 2) 275 Roads exempt may enjoin assessment (n. 3) 275 Injunction to restrain collection of taxes (n. 4) 275 Comptroller's duty (sec. 14) 275 Taxes a first lien (sec. 15) 276 State taxes to be collected by the comptroller (sec. 16) 276 Distress warrant to be issued for State tax (sec, 16) 276 Sale of property for State tax free from redemption (sec. 16) . . . 276 County and city taxes collected as other taxes (sec. 17) 276 Time of assessments (sec. 18) 277 Mode of assessments, and by whom made (sec. 19) 277 Errors and omissions in assessments, how corrected (sec. 20) . . 277 Statutes repealed and suspended (n. 1) 277 Railroad commissioners to back assess and reassess railroad, telegraph, and telephone properties (n. 2) 278 Charter exemption from taxation may pass under a decree of sale expressly so providing under a statute authorizing it (n. 3) 278 Elevator of railroad exempt as warehouse, and tracks to it ex- empt also (n. 4) 278 Exemption in one charter not conferred in another with same rights and privileges (n. 5) 278 Railroads cannot be exempted now (n. 6) 279 Exemption of capital, not an exemption of property of corpora- tion; exemption for a time, an express power to tax there- after (n. 7) 279 ASSESSMENT OF RAILWAY CARS OF NONRESIDENTS USED WITHIN THIS STATE FOR TAXES, AND COLLEC- TION THEREOF. What cars are subject to taxation (sec. 1) 280 Assessment by railroad commissioners (sec. 2) 280 Schedule to contain sworn statements of what (sec 3) 280 Schedule to be received by comptroller and returned to assess- ors; additional evidence; books open to owners (sec. 4) 281 Average number of cars to be assessed, when (sec. 5) 281 IlTDEX. 359 Exception; assessments and evidence to be filed with comp- troller (sec. 6) 281 Assessment to be delivered to board of equalization; their ac- tion (sec. 7) 281 Certificate of valuation to be made, when; final and conclu- sive (sec. 8) 282 Comptroller to notify owners and certify to clerk (sec. 9) 282 Taxes a first lien (sec. 10) 282 Comptroller to collect State tax (sec. 11) 283 County's tax collected as other county taxes (sec. 12) 283 Acts 1897, ch. 5, made applicable so far as appropriate (sec. 13). 283 ASSESSMENT OF INTERURBAN RAILROAD AND STREET RAILROAD PROPERTIES FOR TAXES, AND COLLEC- TION THEREOF. Assessment to be made by railroad commissioners acting as State tax assessors (sec. 1) 283 Assessment to be made biennially (sec. 2) • 284 Schedules to be filed with comptroller showing what (sec. 3) . . . 284 Affidavit to schedule (sec. 4) 284 Failure to file schedule waives right to contest assessed value, and incurs penalty of $1,000 (sec. 4a) 284 Attorney-general to sue for penalty (sec. 4b) 285 Assessors to receive schedules from comptroller, and ascertain value (sec. 5) 285 Value to be ascertained in what manner (sec. 6) 285 Power to examine witnesses, books, etc., to ascertain value (sec. 6a) 285 Perjury to testify falsely (sec. 6b) 286 Misdemeanor to fail to attend as witness; fine and imprison- ment (sec. 6c) 286 Distributable property defined; valued; exemption of $1,000 al- lowed; apportioned, how (sec. 7) 286 Localized property defined (sec. 8) '. 286 Minutes to be made by secretary and signed by assessors (sec. 9) 286 Secretary to preserve reports, documents, and proof (sec. 9a) . . . 287 Evidence and information in addition to schedules; in writing; records to be open (sec. 10) 287 Assessments to be completed, when; exceptions made and heard, when; assessments and records to be filed with comptroller, when (sec. 11) 287 Board of equalization constituted (sec. 12) 287 Comptroller to deliver assessments and records to governor (sec. 12a) 288 Duties and powers of board of equalization; additional evidence required (sec. 12b) 288 360 Index. Assessment is not complete until when (sec. 12c) 288 Governor may call assessors together (sec. 12d) 288 Board of equalization to certify assessment to comptroller, when (sec. 13) 288 Valuation fixed by board of equalization is conclusive and final (sec. 13a) 288 Comptroller to notify owners of amount of State taxes (sec. 14) 289 Comptroller to certify assessed values to county court clerks and mayors (sec. 14a) 289 Lien; taxes due and delinquent, when (sec. 15) 289 Comptroller to collect State taxes; distress warrants; sale of property (sec. 16) 289 City and county taxes collected as other taxes, and at same rate (sec. 17) 290 Governor may convene State tax assessors, when; assessments, reassessments, and back assessments of railroads, telephones, and telegraphs; board of equalizers to act (sec. 18) 290 ASSIGNMENTS FOR CREDITORS. Prior lien for privilege taxes (sec. 27k (3)) 162 ATTACHMENT. In suit to collect inheritance tax (sec. 15a) 107 Attachment by State, county, and city to collect tax against nonresident stockholder (sec. 241) 153 ATTORNEY'S FEES. In inheritance tax suits (sees. 14, 15d, 16) 106-108 Taxed as costs against delinquent payer of inheritance tax (n. 1) 106 District attorney's fee taxed as costs for benefit of State in in- heritance tax suits (n. 2) 106 To be taxed as costs, and not paid by the State in suits to col- lect inheritance taxes, when (n. 1) 109 Not to be certified to comptroller; allowed out of inheritance taxes in hands of clerk, when suit is dismissed or defendant is insolvent (n. 2) 109 In suit county trustee and other officers (sec. 71a) 241 To be added as part of judgment (sec. 71f (5)) 242 Of State's counsel to be reported and accounted for (sec. 71g (6)) 242 Of county's counsel to be collected and reported (sec. 71h (7)). 242 Of city's counsel to be collected and reported (sec. 71i (8)) 242 None unless taxes are collected (sec. 74f) 246 For assisting State revenue agents (sec. 77m) 255 ' To be paid out of fees only in assisting State revenue agents (sec. Ilv) 257 Index. 361 ATTORNEY-GENERAL. To represent clerk and State in inheritance tax suits in su- preme court (sec. 20) 110 To assist State revenue agents, when (sec. 77r) 256 To sue for penalty for failure to file schedule for assessment of interurban and street railroads (sec. 4b) 285 See District Attorneys. AUCTIONEERS. Privilege taxes against (sec. 4) 20 This statute not affected by interstate commerce laws, if no dis- crimination (n. 1) 21 Auctioneer not affected with constructive notice, when (n. 2) . . . 21 AUCTIONS. Method of arriving at taxable value of auction or commission stocks; sworn statement to be filed (sec. 26c (2)) 157 Capital in trade without stock of goods is taxable; sworn state- ment (sec. 26d (3)) 158 AUTOMOBILES. Privilege taxes for garage, or dealing in (sec. 4) 21 Privilege taxes for hiring or running (sec. 4) ; 21 Fee for registration and certificate (sec. 1 (15)) 293 Fee for certificate of transfer (sec. 1 (16)) 294 BACK ASSESSMENTS FOR TAXATION. For preceding years, for which no original assessment was au- thorized, is void (n. 3) 154 Of property omitted from assessment (sec. 30 (1)) 165 For failure of owner to list property (sec. 30 (4)) 166 For preceding years, when original assessments were not au- thorized, are void (n. 3) 170 All collectors to assess (sec. 814) 170 And to collect (sec. 815) 170 " Collector " defined (n. 1) 171 Rule previous to sees. 814 and 815 (n. 2) 171 Collector could then assess only for years for which he was col- lector and where there had been no assessment at all (n. 3) . . . 171 This rule changed by statute (n. 4) 171 Jurisdiction of circuit court by appeal and certiorari (n. 7)...^. 172 Conclusive as to valuation (n. 8) 172 Assessors, examiners, and equalizers are not constitutional courts (n. 9) 172 When owner claims the property to be exempt, mode of pro- cedure (sec. 816) • 172 Suit in name of collector (n. 1) 173 Creates debt, and may be sued on in chancery (n. 2) 173 362 IXDEX. Wrong assjgssment and exemption (sec. 817) 173 Appeal must be tried within ten days (n.) 174 Appeals to have precedence (sec. 818) 174 Collector to make record and oath (sec. 819) 174 Valid, without record, when (n. 1) 174 See Reassessments for Taxation. BACK ASSESSMENTS AND REASSESSMENTS FOR TAX- ATION. No lien against bona fide purchaser; burden to show bona fide purchase; lien where there was no assessment at all (sec. 30 (4a)) 166 Back assessing or reassessing officials have power to summon, swear, and examine witnesses (sec. 30 (5b)) 168 Witnesses are amenable to law for nonattendance and failure to give evidence (sec. 30 (5c)) 168 Back assessments or reassessments are valid as original assess- ments, and have effect as judgments (sec. 30 (5d)) 168 Penalty to be added; penalty and costs become part of taxes (sec. 30 (5e)) 168 Costs paid by county where motion fails (sec. 30 (5f)) 169 Assessments to be compared with inventories and reports of fiduciary officers by county court clerk; report to county trustee; back assessments or reassessments with penalty, when (sec. 30 (5g)) ' 169 Liability of county court clerk or county "trustee for failure to perform duty; jurisdiction for recovery (sec. 30 (5h)) 169 Of railroad property (n. 1) 169 Statutes for, are constitutional (n. 2) 170 When and to whom assessed; liens of back assessments and re- assessments (n. 5) 171 Railroad commissioners to back assess and reassess railroads, when; comptroller formerly assessed them, when omitted (n. 2) , 175 Distributable railroad property to be assessed, back assessed, and reassessed by railroad commissioners, and not by county trustee (n. 3) 175 Special statutes for back assessments and reassessments are not repealed by- implication by general assessment act omitting such provisions (n. 4) 175 Judgment against revenue collector is not "back taxes" (n.) . . . 176 Railroad commissioners to back assess and reassess railroad, telegraph, and telephone properties (n. 2) 278 None but State tax assessors have authority to assess, back assess, or reassess railroads, telegraphs, and telephones (sec. 18) 290 See Reassessments for Taxation. IXDEX. 363 BANKS. And certain other corporations not assessable by the railroad commissioners to be assessed, how (sec. 5, subsec. 4) 119 Shares of stock in banks and certain other corporations shall be assessed to stockholders, how (sec. 24) 148 This method of taxation is constitutional (n. 1) 149 Assessments on bank's capital is void (n. 2) 149 Stock taxed where corporation is; bonds where holder is (n. 3). 149 Stock in national banks is assessable where the bank is (n. 4) . . . 149 Realty and tangible personalty to be assessed to banks and cer- tain other corporations (sec. 24a) 149 Assessable value of stock ascertained by deducting assessed value of realty and tangible personalty (sec. 24b) 150 Assessment of stock to be made where these corporations are located (sec. 24c) 150 President to make sworn assessment schedule showing what (sec. 24d) 150 Assessor may summon witnesses, inspect books and papers, and obtain other evidence (sec. 24e) 151 Shares of $1G0 each assessable as personalty (sec. 24f) 151 Shares of partners to be reported, and where assessable (sec. 24g) 151 President or manager to pay taxes; where assessed (sec. 24h) . . 152 List of stockholders, where kept (sec. 24i) 152 Back assessment for preceding years, for which no original as- sessment was authorized, is void (n. 3) 154 Attachment by collector to collect tax against nonresident stockholders; tax is a lien on such stock (sec. 24j) 152 Tax is a lien on stock, and to be paid by corporation regardless of dividends; corporation to be subrogated to lien (sec. 24k).. 153 Attachment by State, county, and city to collect tax against nonresident stockholder (sec. 241) 153 BASEBALL PARKS. Privilege taxes against (sec. 4) 22 BASTARDY. Litigation tax on bastardy cases (n. 16) 51 BICYCLES. Privilege tax for dealing in (sec, 4) 22 Privilege tax for keeping for hire (sec. 4) 22 BILLIARD TABLES. See Games. BILLPOSTERS. Privilege taxes against (sec. 4) 22 364 Index. BOARD OF EQUALIZATION. Composed of governor, treasurer,, and secretary of State (sec. 12) 274, 287 To act upon assessments of railroad, telegraph, and telephone properties (sec. 12) • 274 Mandamus against railroad commissioners (n, 1) 274 Assessment not complete until passed upon by (n. 2) 274 To certify valuations to the comptroller (sec. 13) 274 Comptroller to deliver to the board assessment of railway cars of nonresidents (sec. 7) 281 To certify to comptroller their valuation of such cars, when; their action is final and conclusive (sec. 8) 282 To equalize assessments of interurban and street railroads (sec. 12b) 288 Assessments not complete until approved by (sec. 12c) 288 To certify assessments to comptroller (sec. 13) 288 Valuation fixed by board is conclusive and final (sec. 13a) 288 To act upon assessments of interurban and street railroads as- sessed at called meeting of State tax assessors (sec. 18) 290 See County Board of Equalizers. See State Board of Equalization. BOOKKEEPING. Uniform system to be prescribed by comptroller for State and county officials as to revenue; but not books of particular publishers (sec. 78) 258 BOTTLERS. Privilege taxes against (sec. 4) 23 BREWERIES. Privilege taxes against (sec. 4) 23 BROKERS. Privilege taxes against (sec. 4) 24 Merchandise brokers representing nonresident principals ex- clusively cannot be taxed by State (n.) 24 Selling as such, and not for nonresident principals, are subject to privilege tax (n. 3) 62 BUILDING AND LOAN ASSOCIATIONS. Privilege tax in lieu of all other taxes (sec. 7) 76 Sworn return of capital (sec. 7a) ^^ Sworn return of foreign associations as to capital paid by citi- zens of this State (sec. 7b) T^ Index. 365 BUTCHERS. Privilege taxes against (sec. 4) 25 Wholesale dealers in fresh meat, other than butchers (sec. 4) . . . 25 Defined (n. 1) 25 Licensed merchant selling fresh meats must pay this tax (n. 2) . 25 CARLISLE LIFE TABLES. Life estates valued by under inheritance tax law^ (sec. 12) 98 Showing the expectation of life in additional years at any age from 10 to 100 (n. 1) 100 Annuity table based upon, shov^ang the present value of a life annuity of one dollar, at six per cent, interest, at any age from birth to 100 years (n. 3) 101 Explanation and illustration (n. 4) 102 Use of tables (n. 5) 102 Author and name of tables (n. 6) 102 CAVEAT EMPTOR. Rule applies to tax sales (n. 7) 235 CERTIFIED LIST OF LANDS SOLD FOR TAXES. See Sale of Land for Taxes. CERTIORARL Litigation tax on certiorari from justice, though compromised before trial (n. 20) 52 CHAIRMAN OF COUNTY COURT. See County Judge or Chairman. CHANCERY COURT. Duty as to inheritance tax (sec. 22) 110 CHARGE OF COURT. As to violation of revenue law (sec. 19) 91 As to violation of the general assessment law (sec. 80) 259 CHECK ROOMS. Privilege taxes for keeping 26 CIGAR STANDS. Privilege taxes against (sec. 4) 26 Defined (n. 1) 27 Tax must be paid by licensed merchant or saloon keeper, ex- cept when (n. 2) ^' 366 Index. CIRCUIT COURT. CLERKS. To register license; registration shall show what (sec. 27b) 160 Fee for registering and countersigning license, and making re- ports (sec. 27c) 160 Must countersign license; violation is a misdemeanor (sec. 27e) . 160 Certified list of lands sold for taxes is a record in office of (sec. 53a) 216 Compensation upon redemption of land sold for taxes (sec. 56b) 220 To issue writs of possession awarded to purchasers (sec. 57a) . . 222 Not to issue writs of possession without order of court (sec. 57c) 222 Liability to owner for excess over taxes on land sold for taxes (sec 60) 224 To make record of redemption (sec. 61) 224 Fee for conveyance of land to purchaser at tax sale (sec. 62a) . . . 225 To sell land to highest bidder for taxes, when; proceeds to be distributed, how (sec. 62f) 227 To make deed in lieu of back tax attorney's certificate under Acts of 1895 (sec. 63) 227 To resell land struck off to State treasurer for taxes, when, and without redemption; notice (sec, 63a) 227 To give notice before making tax deed; cost thereof; clerk's fee; what to be paid by purchaser (sec. 64g) 230 To issue writ of possession to purchaser at sale of land for taxes upon order of the court, when (sec. 65) 232 To report and pay over monthly taxes collected on redemption and purchases; liability and penalty for failure (sec. 66) 233 Report shall show what (sec. 66a) 233 To collect fees and pay over to proper officials (sec. 74a) 245 List of fees in criminal cases (sec. 6398) 332 List of fees common to all clerks to which they are entitled in criminal cases (sec. 6388) 334 Salaries (sec. 1) 342 Itemized statement of fees (sec. la) 342 Fees in excess of salaries retained (sec. 2) 343 CIRCUSES OR MENAGERIES. Privilege taxes against (sec. 4) 27 These may be declared privileges, and taxed, though exercised by nonresident (n.) 28 CIVIL DISTRICTS. Taxing power cannot be delegated to (n. 1) . . 8 CLASSIFICATION. Of merchants and privileges, and each class of business required to pay privilege taxes (n. 11) 15 Graduation and classification of privileges is valid (n. 12) 15 Index. 367 Cities cannot discriminate in classes (n. 19-21) 16 Graduation according to population (n. 1) 71 CLERKS. Fees on reference as to taxes where land is sold under de- cree (sec, 2) 293 Neglect of duty deprives clerks of fees, when (sees. 7589, 6394) -.303, 305 No fee for imperfect transcript (sec. 6395) 305 Entitled to no fee for certifying or copying bill of costs against State or county, when (n. 6) 307 To deliver comptroller's warrant for costs to proper party (sec. 7597) 309 To report and pay over fees of district attorney (sec. 2) 329 List of fees in criminal cases (sec. 6398) 332 List of fees common to all clerks to which clerks may be entitled in criminal cases (sec. 6388) 334 See Trustees. CLERK AND MASTER. Duty as to inheritance tax (sec. 22) 110 Fees on reference as to taxes where land is sold under de- cree (sec. 2) 293 CLOCKS. See Ranges and Clocks. COAL OR COKE, OR COAL AND COKE. Privilege taxes against agents or dealers (sec. 4) 28 COAL OIL, ETC. Privilege taxes for dealing in (sec. 4) 29 COLLATERAL INHERITANCE AND SUCCESSION TAX OR DUTY. Tax laid on all estates passing in any manner from decedents to all persons except father, mother, husband, wife, children, &nd lineal descendants born in lawful wedlock; rate; liability of personal representatives; exemptions; adopted children not exempt (sec. 1) 92 Brothers and sisters are liable for the inheritance and succession tax imposed by Acts 1893, ch. 174, and have been since Acts 1895 (ex. ses.), ch. 4 (n. 1) , 92 Exception of certain relatives does not render the statute void (n. 2) 93 Estates administered here passing to collateral heirs are subject to the tax (n. 3) • 93 Property of nonresidents not in this State is not subject to the _. inheritance tax (n. 4) ._• • • 93 368 Index. United States bonds are not exempt (n. 5) 93 Proceeds of life insurance policy passing to brothers and sisters are subject to the inheritance tax (n. 6) 93 Fair compensation to executors, etc.; excess subject to tax (sec. 2) 94 Tax on remainder estates subject to the tax is payable after ter- mination of life or other estate (sec. 3) 94 Assessed on value at time of payment; prepayment, when (sec. 3a) 94 Taxes a lien on realty; on personalty to be secured (sec. 3b) .... 94 Inheritance tax on contingent remainder interest is not payable until it comes into enjoyment, and bond for same is not re- quired; rule as to vested remainder interests is reserved (n. 1) 95 Life tenant becoming owner of the remainder interest is liable for the tax on the remainder interest at that time; merger of estates (n. 2) 95 Discount for early payment; interest on delayed payment (sec. 4) 95 Duties of executor or administrator as to tax (sec. 5) 95 Conditional estate (sec. 6) 96 Tax paid on contingent estates (n.) 96 On legacy charged upon real estate to be a lien on the real estate (sec. 7) 97 Information as to tax on real estate, who to give (sec. 8) 97 Payment of tax and receipt for same (sec. 9) 97 Transfer of stocks, etc.; liability for tax (sec. 10) 98 Repayment of tax, when (sec. 11) 98 Appraisement, report of; appeal; duty of county court clerk; annuities and life estates valued by Carlisle Life Tables; appeals (sec. 12) 98 Carlisle Life Table, showing the expectation of life in additional years at any age from 10 to 100 (n. 1) 100 Carlisle Annuity Table, showing the present value of a life annu- ity of one dollar, at six per cent, interest, at any age from birth to 100 years (n. 3) 101 Explanation and illustration of table (n. 4) 102 Use of the tables (n. 5) 102 Author and name of the tables (n. 6) 102 Table showing present value of $1 payable at the end of any given number of years not exceeding 40, discounting at the rate of six per cent, compound interest (n. 7) 103 Table showing present value of an annuity certain of $1 payable ■ - at the end of each year for any number of years not exceed- ing 40, discounting at the rate of six per cent, compound inter- est (n. 8) 103 Burden on defendant attacking valuation shown by the appraise- , ment, when (n. 9) 103 Appraiser is guilty of a misdemeanor, when (sec. 13) 104 Index. 369 Record of appraisements, and monthly reports thereof to be made to comptroller by clerks of county courts (sec. 14) 104 Payment enforced by county court; its jurisdiction; equity of redemption barred (sec. 14a) 104 Jurisdiction of county court is not ousted by pendency of ad- ministration suit in chancery court (n.) 105 State may bid in, and pay costs; writ of possession (sec. 14b) ... 105 Clerk of county court may postpone suit, when (sec. 14c) 105 Attorney's fee; appeal, and additional attorney's fee (sec. 14d) . . 106 Attorneys' fees taxed as costs against delinquent (n. 1) 106 District attorney's fee taxed costs for benefit of the State (n. 2). 106 Collection of delinquent tax by suit upon notice (sec. 15) . 106 Or by bill; attachment and injunction (sec. 15a) 107 Jurisdiction of county court; appeals and trial in circuit court; appeal bond by defendant as appellant (sec. 15b) 107 District attorneys to attend to appeals in circuit courts; attor- neys' fees to be taxed (sec. 15c) 107 County court clerks are State's agents for collecting tax; pro- visions as to; compensation; employment of counsel and their fees ; costs (sec. 16) 108 Attorney's fee to be taxed as costs, and not paid by the State, when (n. 1) 109 Attorney's fees not to be certified to comptroller; allowed out of inheritance taxes in hands of clerk, when suit is dismissed or defendant is insolvent (n. 2) 109 Revenue bond of clerk of county court covers the inheritance tax (sec. 17) 109 Clerk of county court to make payment to State treasurer quar- terly; penalty for failure (sec. 18) 109 Lien for taxes; limitation of five years for suit (sec. 19) 110 Attorney-general to represent clerk and State in supreme court (sec. 20) 110 Executors and administrators are liable on bond; trustee is in- cluded (sec. 21) 110 Duties of the chancery court and of the clerk and master (sec. 22) 110 Appraiser, oath and compensation of (sec. 23) Ill Term " county court " means monthly court (sec. 26) HI Statute is constitutional (n. 1) ; . HI This statute is a complete system upon inheritance taxes (n. 2). 112 Construction of acts (n. 3) H2 Acts 1903, ch. 561, is unconstitutional (n. 4) 112 Legacies to religious, literary, or charitable institutions are ex- empt from inheritance tax (n. 5) H3 History of statutes on inheritance tax (n. 6) 113 370 IXDEX. COLLECTION AGENCIES. Privilege taxes against (sec. 4) 30 COLLECTION OF TAXES. County court clerk collects privileges and merchant's taxes (sec. 47) 208 Privileges collectible by whom (n.) 208 County trustee collects other taxes as heretofore (sec. 47a) 208 Taxes are due and payable to county trustee, and delinquent, when; interest and penalty; municipal and poll taxes (sec. 48). 208 Penalties may be imposed for nonpayment of taxes (n. 1) 209 Penalty for nonpayment of taxes by life tenant does not attach to remainder estate (n. 2) 209 Distress warrants after March 1, and have force and effect of executions from judgments (sec. 49) 209 Statutes authorizing distress warrants are valid (n.) 2C9 Notice of sales (sec. 49a) 210 Officers to have property at sale; costs, commissions, and ex- penses of removal (sec. 49b) 210 Garnishment lies, when; proceedings on; judgment (sec. 49c)... 210 Fees on collection by distress or distress and sale (sec. 49d) .... 210 Trustee m.ay appoint deputies; list of delinquent taxpayers (sec. 49e) 210 Void levy for taxe^ under a void paper from the county trustee will be enjoined (n.) 211 Record of levies and proceedings (sec. 49f) 211 Fees of deputies in collection of delinquent taxes, and not to be accounted for by trustee (sec. 49g) 211 Delinquent polls to be* issued, when; commissions, fees, and costs of constables or deputies (sec. 49h) 211 Poll tax list to be returned, when; payment afterwards (sec. 49i) 212 Monthly reports and payments by constables or deputies as to collection of poll taxes; fees retained (sec. 49j) 212 Final settlements and payments; credits for what (sec. 49k).... 213 Balance due on settlements may be recovered from constables or deputies, how (sec. 491) . 213 Bond of constable or deputy (sec. 49m) 213 Deputy or constable is entitled to no fee, except where he col- lects the taxes himself (sec. 49o) 214 Back poll taxes are payable without costs, when; refusal of offi- cial is high misdemeanor; fine (sec. 49p) 214 Pending suits are not barred nor affected by such sales, where the State becomes purchaser (sec. 74d) 246. Trustee of new county to collect taxes in fractional parts taken from old counties for debts, when (sec. 1) 260 Tax books to be made by whom, and to show what, and to be delivered to trustee (sec. 2) 260 IXDEX. 371 Trustee to collect taxes (sec. 2a) 261 Compensation of trustee (sec. 2b) 261 Trustee's bond (sec. 2c) 261 Tax books to show what (sec. 2d) 262 General assessment laws for assessment and collection of taxes shall govern, except as modified by this act; special provisions (sec. 3a) 263 Application of act limited (sec. 4) 263 Delinquent taxes to be certified to old county, and collected by sale of property; collected taxes to be paid over; new county released, when (sec. 3a) 263 Application of act limited (sec. 4) 263 Penalties for failure of trustee to execute bond and to faithfully perform his duties (sec. 5) 263 Constitutionality of this act considered (n.) 264 That are a lien on land sold under decree of court (sec. 969) 290 Notice to tax collectors under reference to ascertain taxes (sec 1.) 292 Fees of clerk and clerk and master (sec. 2) 293 See Sale of Land for Taxes. See Payment of Taxes. COMMERCIAL, ETC., AGENCIES. Privilege taxes against (sec. 4) 30 Taxable for each oflice where kept (n.) 30 COMPTROLLER OF THE STATE TREASURY. To collect certain privilege taxes (sec. 5) 68 To report privileges collected (sec. 17b) 90 To furnish to clerks uniform blanks for reports (sec. 17b) 90 To prepare and furnish schedules for county court clerks to fur- nish assessors (sec. 15) 135 Authority and duty as to land struck off to State treasurer for taxes (sec. 57f) 223 Cannot appoint a " special agent " for a given county (n.) 223 Comptroller authorized, through revenue agents, to prosecute pending suits, and to make settlements (sec. 74e) 246 Compensation to be fixed; State, counties, and cities are not liable for costs, fees, and charges (sec. 74f) 246 To appoint State revenue agents (sec. IT) 251 To furnish information to State revenue agents (sec. 77a) 251 To publish in his biennial report a detailed statement as to de- linquent revenues collected, and as to revenue agents and their operations (sec. 77y) 257 To furnish schedules to railroad commissioners for assessment of railroads, telegraphs, and telephones (sec. 4) 268 To deliver assessments of railroad, telegraph, and telephone properties to the governor (sec. 12) 274 372 Index. Duty after board of equalization has certified to him the valua- tions fixed by it on railroad, telegraph, and telephone proper- ties (sec. 14) 275 To collect and pay over the State tax on such properties (sec. 16) 276 To issue distress warrant for such taxes (sec. 16) 276 To sell such property for the taxes (sec. 16) 276 To receive schedule and deliver same to railroad commission- ers as State tax assessors for assessing railway cars of non- residents (sec. 4) 281 To deliver the assessment of such cars to board of equaliza- tion (sec. 7) 281 To notify owners and certify to clerk valuations fixed by board of equalization on such cars (sec. 9) 282 To collect State tax on such cars (sec. 11) 283 To deliver to railroad commissioners as State tax assessors schedules for assessment of interurban and street railroads (sec. S) 285 To deliver assessments and records received from said assess- ors to the governor (sec. 12a) 288 To notify owners of amount of State tax (sec. 14) ". 289 To certify assessed values to county court clerks and mayors (sec. 14a) 289 To collect State taxes; distress warrants; sale of property (sec. 16) 289 To revise bills of costs (sec. 7594, n. 5) 304, 307 May draw separate warrant in favor of any party interested (sec. 7596) 308 Duty as to board of criminal juries (sec. 7608) 312 Not to issue warrant for witness unless properly certified (sec. 7643) 353 CONDITIONAL ESTATES. Inheritance tax on (sec. 6) 96 Tax to be paid on contingent estates (n.) 96 CONSTABLES. Fees same as sheriff (sec. 6409) 348 List of fees (sec. 6410) 348 Statutes amended and repealed (n. 1) 348 Allowed two dollars per day for waiting.on grand jury, but noth- ing extra for serving subpoenas (n. 2) '. 348 See Deputies. CONSTRUCTION COMPANIES. Privilege taxes against (sec. 4). ..... , ,,,,,,,,, 30 Index. 373 CONTINGENT ESTATES. Inheritance tax on (sec. 6) 96 CONTRACTS. In violation of privilege tax laws are void (n. 24) 17 No presumption of violation ot privilege tax laws (n. 25) 17 Exercise of a taxed privilege without paying the license tax in- validates the contract (n.) 159 CORONERS. Fees same as those of sheriff (sec. 6407) 348 Fee for each inquisition (sec. 6408) 348 CORPORATIONS. Tax on charters or amendments (sec. 9) 80 Tax on consolidation (sec. 10) 81 Liable for inheritance tax on transfer of stocks, when (sec. 10) . 98 Not assessable by the railroad commissioners to be assessed, how (sec. 5, subsec. 4) 119 In cities are assessable there (sec. 5, subsec. 4) 119 Quasi public corporations and all corporations, with exceptions stated, to be assessed, how (sec. 21) 139 Valid method of taxing quasi public and manufacturing corpo- rations (n.) 140 Assessment schedule to be returned under oath by president or chief officer, and to show what (sec. 21a) 141 Assessor may examine witnesses, books, or papers, or obtain other evidence; gross and net receipts (sec. 21b) 142 Manufacturing corporations to pay ad valorem tax on capital stock or corporate property, including franchises, etc.; value ascertained, how; manufactured articles exempt, when (sec. 22a) 143 Omission of exemption of stocks and bonds (n.) 143 Realty and tangible personalty of such corporations to be as- sessed; its value and that of exempt manufactures to be de- ducted to ascertain assessment value of corporate property or capital stock (sec, 22b) 144 Capital stock or corporate property includes what (sec. 22c) . . . 144 Valid method of taxing quasi 'public and manufacturing corpo- rations (n. 1) 144 Intangible personalty to be assessed, where (n. 2) 144 Schedule under oath to be filled out by corporation official and returned by assessor, as record, and to show what (sec. 22d) . . 144 Such corporations shall be assessed, when; and the assessable value shall be ascertained, how (sec. 23) 147 Foreign corporations with branches here shall be assessed, how (sec. 23a) , .^. , ., ..,.. 148 374 Index. Charter exemptions to be avoided as far as possible, except as to municipal taxes (sec. 25) , 153 Charter exemption of shares of capital stock is not effective as against ad valorem taxation of capital stock, nor from privi- lege taxation (n. 1) 154 Charter exemption effective as to ad valorem taxes, but not as to privilege taxes (n. 2) 154 Fee for charter of incorporation (sec. 1 (6)) 293 Fee for certified copy of domestic charter of incorporation (sec. 1 (7)) 293 Fee for filing articles of consolidation (sec. 1 (12)) 293 Fee for filing other articles of agreement between (sec. 1 (13)). 293 Fee for charters for general welfare (sec. 2) 294 Fees for amendments of charters (sec. 1) 294 Fee for amendment of legislative charters of purely educational and religious corporations (n.) 295 See Foreign Corporations. See Municipal Corporations. COSTS. Plaintiff taxed with, where debt sued for was not given in for taxation (sec. 14) 135 None to be paid by State, county, and city in motions on bonds of delinquent privilege taxpayers (sec. 28f) 164 To be paid by county where motion to back assess or reassess property fails (sec. 30 (5f)) 169 Bills of costs to be made out by officers (sec. 6355) 301 Commissions on costs, except their own (sees. 6357, 6358) 301 Court to decide questions under law of compensation (sec. 6359) 301 Supreme court will determine question of compensation of clerk of lower court for making second transcript; rescission of pre- vious order (n.) 301 See Criminal. Costs. See Fees. COTTON BUYERS OR FACTORS. Privilege taxes against (sec. 4) 32 Privilege tax for the year, though not so specified (n.) 32 COTTON COMPRESSES. Privilege taxes against (sec. 4) 31 COTTON SEED OIL MILLS. Privilege taxes against (sec. 4) 31 COUNSEL. Employment of, and their fees, in inheritance tax suits (sec. 16). 108 Index. 375 COUNTERFEIT. Misdemeanor to counterfeit poll tax receipts; fine (sec. 42d) . . . . 205 COUNTIES. Rate of taxation for (sec, 2) 7 Delegation of taxing power to (n. 1) 8 What is a county purpose of taxation determined by the courts (n. 2) 8 Power of taxation is not judicial, but legislative (ns. 3, 4) 8, 9 County assessment is for what (n. 5) 9 Bridge tax is not included in maximum rate for county pur- poses (n. 6) 9 Special act for building bridge is not repealed by a general act, when (n. 7) 9 Special tax; surplus; misappropriation enjoined, but collection not enjoined, because illegal for excessiveness, when (n. 8) . . . 9 Cannot discriminate in privilege taxes (n. 9) 9 Privilege tax in each county (n, 17) 15 New county assessment to be copied for old county to pay debt or interest in old county (sec. 13a) 134 To pay no costs in motions on bonds of delinquent privilege taxpayers (sec. 28f) 164 To pay costs where motion to back assess or reassess property, fails (sec. 30 (f)) 169 To pay fee for publishing county trustee's annual sworn state- ment (sec. 68a) 237 Motion or suit in name of the State for county against the county trustee (sec. 71b (1)) 241 Motion or suit for county in name of State made by whom (sec. 71d (3)) 242 Fees of county's counsel to be collected and reported (sec. 71h (7)) 242 Taxpayer may make motion or bring suit in name of the State for county, when (sec. 71j (9)) 242 No liability for costs, fees, and charges, unless taxes are col- lected (sec. 74f ) 246 Collection of taxes in fractional parts of new counties taken from old counties owing railroad debts prior to separation (sees. 1-5) 260-264 Constitutionality of this act considered (n.) 264 Taxes against railroads, telegraphs, and telephones collected as other county taxes (sec. 17) 276 Taxes on railway cars of nonresidents to be collected as other county taxes (sec. 12) 283 Taxes on interurban and street railroads to be collected as other county taxes (sec. 17) 290 376 . Index. COUNTY BOARD OF EQUALIZERS. Qualifications; eligibility; election; powers; cities to appoint two, when (sec. 32) 178 County judge or chairman to appoint, when (sec. 32a) 179 Meeting and sitting of board (sec. 32b) 179 Organization of board; quorum; record; compensation (sec. 32c) 179 Assessment lists to be delivered to board by county court clerk (sec. 32d) 180 Board to turn records, papers, and assessment lists over to county court clerk (sec. 32e) 180 Duties and powers of board (sec. 32f) 180 Board cannot alter or change assessments of lands for previous year, when (n.) 181 Notice to property owner when assessment is increased (sec. 32g) 181 Sufficiency of notice cannot be considered or passed upon by county trustee (n.) 181 Board may examine witnesses and papers; obtain evidence; and administer oaths; perjury of witnesses (sec. 32h) 181 Property owner's right of complaint for inadequacy of assess- ments; board to hear evidence, and equalize assessments (sec. 32i) 182 To report to State board of equalization (sec. 32j) 182 Tabulated statement of sales to be made by board and county register; and it or a certified copy to be forwarded to the State board (sec. 32k) 183 To examine assessors (sec. 321) 183 Board's action is final, except revision or change by State board (sec. 32m) 184 Board's certificate to assessment rolls upon returning same to county court clerk (sec. 32n) 184 Oath of members of board before assuming duties (sec. 32o) . . . 184 Certified copies of oath to be sent to State board, when (sec. 32p) 185 Unlawful for member of board to act without taking oath (sec. 32q) 185 Unlawful for board to fail to send tabulated statement of sales or certified copy thereof to State board (sec. 32r) 185 To report- assessors for inadequate assessments; proceedings against assessors by district attorney or revenue agent (sec. 32s) 185 Unlawful for board to equalize assessments at less than actual cash value (sec. 32t) 186 Proceedings against county board for penalty for equalizing at less than cash value; duty of State board, comptroller, district attorney, and revenue agent (sec. 32u) 186 County boards to report taxpayers not swearing to schedule or returning same, when; State board to do so; proceedings Index. 377 against assessors for failure to report; prosecution of taxpay- ers for failure; neglect of board is unlawful (sec. 32v) 186 Unlawful for board to fail to transmit answers of assessors (sec. 32w) 187 Neglect of officials to perform duties is a misdemeanor (sec. 32x) 187 Assessment to be prepared for board, how (sec. 32y) 188 Penalty for failure to perform duties recoverable by motion or suit (sec. 33) 188 Compensation not to be drawn till duties performed by assess- ors and equalizers, except in certain counties (sec. 34) 189 Oaths to be forwarded to State board of equalization (sec. 36) . . 190 To observe rules and regulations prescribed by State board (sec. 37 (14a)) 197 Their official neglect to be certified by State board; penalties sued for; misdemeanors prosecuted (sec. 37 (15)) 197 See Board of Equalization. See State Board of Equalization. COUNTY COURT. Payment of inheritance tax enforced by county court; its juris- diction (sees. 14a, 15b) 104, 107 Jurisdiction is not ousted by pendency of administration suit in chancery (n.) 105 Means monthly court in inheritance tax law (sec. 26) Ill Jurisdiction to enforce collection of privilege taxes (sec. 28b) . . . 163 To examine county trustee's report, and allow credits (sec. 69a) . 238 To investigate credits claimed for insolvencies (sec. 69d) 239 To elect count}-- revenue commissioners (sec. 76) 249 COUNTY COURT CLERKS. To collect certain privilege taxes (sec. 4) 18-68 To collect realty transfer taxes (sec. 8) 78 May determine consideration for transfer of land to be greater than that stated, when (n. 7) 79 No fee for certificate of payment of tax on transfer of land (n. 8) 79 To make reports of collections of privilege taxes (sees. 17-17b) .89, 90 To collect privilege taxes promptly; extension of time is a mis- demeanor in office; fine (sec. 18a) " 90 To issue distress warrant for delinquent privilege tax (sec. 18b) 91 Duties as to inheritance tax (sec. 12) 98 To make records of appraisements and report monthly to comp- troller as to inheritance tax (sec. 14) 104 May postpone suit for inheritance tax, when (sec. 14c) 105 To collect inheritance tax by notice or suit (sees. 15, 15a)... 106, 107 State's agents for collecting tax; provisions as to; compensa- tion; employment of counsel and their fees; costs (sec. 16) . . . 108 Revenue bond covers inheritance tax (sec. 17) 109 37^ Index. To make payment of inheritance tax to State treasurer quar- terly; penalty for failure (sec. 18) 109 To report failure of tax assessors or deputies to take the re- quired oaths (sec. lOf) 128 Misdemeanor in office not to comply with law as to bond of assessor (sec. 10m) 129 To furnish tax schedules to tax assessors (sec. 15) 135 Assessment lists returned to his office are records of his office (sec. 18:» 137 Citation by clerk for revisal and correction of sworn statement; power to investigate; insurance to be ascertained (sec. 2^^ (4)) .158 License to be obtained from (sec. 27) 159 Guilty of misdemeanor for issuing license not countersigned by the circuit court clerk (sec. 27d) 160 Fee for bond and license is one dollar (sec. 27g) 161 To turn over bonds of delinquents to county attorney, or what other attorney, when; receipts (sec. 28) 163 To give notice to principal and sureties; judgment by motion (sec. 28a) 163 Fees for services in such cases (sec. 28e) 164 May issue distress warrants notwithstanding these suits (sec. • 28-) 164 To collect privilege and merchant's taxes (sec. 29 and n.)...164, 165 Fines and penalties for failure to pay over such taxes (sec. 29 and n. 1) 164 To cite merchants for reassessment, when -(sec. 30 (5)) 166 Form of citation (sec. 30 (5a) ) 167 Power to summon, swear, and examine witnesses (sec. 30 (5b)). 168 • Assessments to be compared with inventories and reports of fiduciary officers by county court clerk; report to county trus- tee; back assessments or reassessments with penalty, when (sec. 30 (5g)) 169 Liability of county court clerk or county trustee for failure to perform duty; jurisdiction for recovery (sec. 30 (h)) 169 To deliver assessment lists to county board of equalizers (sec. 32d) 180 Same to be turned back to him by the board (sec. 32e) 180 Misdemeanor to neglect to perform duties in forwarding state- ments to State board of equalization (sec. 32x) 187 To prepare tabulated statement and mail same to State board of equalization; fine and penalty for failure (sec. 32z) 188 Misdemeanor to fail to observe the general assessment law (sec. 35) 189 To preserve oaths to be taken under general assessment law (sec. 36) 190 To forward oaths of county board of equalizers to State board (sec. 36) 190 Index. 379 • Official neglect to be certified by State board of equalization; penalties sued for; misdemeanors prosecuted (sec. 37 (15))... 197 To make out tax book and deliver same to county trustee, when; compensation (sec. 39) 201 Tax books to be made to show what (sec. 40) 202 To furnish tax aggregates for comptroller and mayor (sec. 43) . 205 Forfeiture of compensation for noncompliance with certain re- quirements (sec. 44) 206 To examine and report as to privileges (sec. 45a) 206 To collect privileges and merchant's taxes (sec. 47) 208 To enter and indorse tax deed before registration;, his fee (sec. 62b) • 225 To certify list of credits allowed county trustee (sec. 69b) 239 To receive delinquent privilege taxes (sec. 77z) 258 COUNTY JUDGE OR CHAIRMAN. To report failure of tax assessors or deputies to take required oaths (sec. lOf)'. 128 Misdemeanor in office not to comply with law as to bond of tax assessor (sec. 10m) 129 Power to cite and examine fiduciary failing to return schedule, and to make assessment (sec. 17) 137 To appoint county board of equalizers, when (sec. 32a) 179 Misdemeanor to neglect to perform duties in forwarding state- ments to State board of equalization (sec. 32x) 187 To institute proceedings to recover penalties under the general - assessment law (sec. 33a) 189 Misdemeanor not to observe the general assessment law (sec. 35) 189 Official neglect to be certified by State board of equalization; penalties sued for; misdemeanors prosecuted (sec. 37 (15))... 197 To examine lists of persons liable for privilege taxes (sec. 45a) . 206 To revise bills of costs (sec. 7594) 304 Retaxation of costs at his instance (n. 7) 307 Duty as to board of criminal juries (sec. 7608) 312 COUNTY REGISTER. Entitled to no fee for certificate of tax on transfer of land (n. 8) 79 Misdemeanor to neglect to perform duties in forwarding state- ments to State board of equalization (sec. 32x) 187 COUNTY REVENUE COMMISSIONERS. li^lection; eligibility; qualifications (sec. 76) 249 Term of office (sec. 76a) 249 Discrepancy in election and terms of office (n.) 249 Oath (sec. 76b) 250 Time of meeting; duties to be performed (sec. 76c) 250 Compensation (sec. 76d) 250 38o Index. COUNTY TRUSTEE. To cite taxpayer for reassessment, when (sec. 30 (5)) 166 Form of citation (sec. 30 (5a)) 167 Power to summon, swear, and examine witnesses (sec. 30 (5b)). 168 To back assess or reassess estates of decedents, when (sec. 30 (5g)) 169 Liability for failure to perform this duty; jurisdiction for recov- ery (sec. 30 (5h)) 169 Cannot consider sufficiency of notice of increase in assess- ment (n.) 181 Official neglect to be certified: penalties sued for; misdemean- ors prosecuted (sec. 37 (15)) 197 To give receipt for taxes (sec. 42) 204 To give poll tax receipt which may be combined with land tax receipt (sec. 42b) 205 Charged with and must account for poll tax receipts (sec. 42c) . . 205 Liability for receiving poll tax without property tax (sec. 46b) . . 207 Collect property taxes (sec. 47a) 208 May appoint deputies; list of delinquent taxpayers (sec. 49e) . . . 210 To keep record of levies and proceedings (sec. 49f) 211 Not required to account for fees of deputies in collection of de- linquent taxes (sec. 49g) 211 To issue delinquent polls, when (sec. 49h) 211 Entitled to no fees except commissions (sec. 49n) 213 -Entitled to no fee for selling land for taxes (n.) 214 To advertise land for sale for taxes (sec. 50) 214 To sell land for taxes, when (sec. 51) 215 To make certified list of lands so struck oflf to State treasurer in book form showing what; a record of office of circuit court clerk (sec. 53a) 216 Form of certificate to list (sec. 53c) 217 To enter redemption or purchase on original tax books (sec. 66b) 233 To report and pay over monthly (sec. 68) 237 To make annual sworn statement, and publish same; publica- tion fee to be paid by county (sec. 68a) 237 Not entitled to commissions until report is published; recovery, where illegally paid (sec. 68b) 237 Monthly settlements to be spread upon minutes; credits to be specified (sec. 68c) 237 To present list of insolvents, delinquents, and double assess- ments annually at July session, verified by affidavit; requisites (sec. 69) 238 Forfeiture of credits for delinquencies on lands for failure to re- port within prescribed time (n. 1) 238 Delay of tax books postpones time (n. 2) 238 Examination of report and credits allowed by the county court (sec. 69a) 238 Index. 381 List of credits to be certified by clerk of county court (sec. 69b) . 239 Report to be spread upon minutes (sec. 69c) 239 Credits claimed for insolvencies to be investigated by the county court (sec. 69d) 239 List is chargeable against trustee unless credits are allowed; improper allowance of credits does not operate as an estoppel (sec. 69e) 239 List of insolvent poll taxes to be retained, collections made and reported (sec. 69f) 239 Fees for collection of polls by distraint or sale (sec. 69g) 240 Annual statement in September for final settlement; credits (sec. 70) 240 Settlement to be spread upon minutes of county court (sec. 70a) 240 Misdemeanor to violate general assessment law; fine for school fund (sec. 71) 241 An additional penalty for failure of collector to pay over taxes collected; forfeiture of office; attorney's fees (sec. 71a) 241 Motion or suit against trustee in name of State (sec. 71b (1)). . . 241 Motion or suit for State made or brought by whom (sec. 71c (2)) 241 Motion or suit for county in name of State made or brought by whom (sec. 71d (3)) 242 Motion or suit for city in name of State may be brought by whom (sec. 71e (4)) 242 Counsel's compensation of fifteen per cent, to be added as part of judgment (sec. 71f (5)) 242 Fees of State's counsel to be reported and accounted for (sec. 71g (6)) 242 Fees of county's counsel to be collected and reported (sec. 71h (7)) 242 Fees of city's counsel to be collected and reported (sec. 71i (8)). 242 Taxpayer may make motion or bring suit in name of State, upon leave of court, when; application for leave, and costs (sec. 71j (9)) 242. No releasement of revenue collectors (sec. 71k (10)) 243 Compensation of (sec. 72) 243 Rules and provisions for collection of delinquent municipal taxes (sec. 73) ' 244 City taxes are delinquent, when (sec. 73 (1)) 244 Penalties on delinquent city taxes (sec. 73 (2)) 244 Interest in addition to penalty on delinquent city taxes (sec. 73 (3)) 245 Sales for delinquent city taxes (sec. 73 (4)) 245 Advertisement of delinquent land for taxes of 1906, and for all other years (sec. 74) 245 Fees to be collected and paid over to the proper officials (sec. 74a) ♦. . . . 245 Sale to include all delinquent lands; same method as for sales of land for taxes for 1906 (sec. 74b) 245 382 Index. Separate report of sales of land for delinquent taxes prior to 1906; trustee's compensation (sec. 74g) 245 To receive delinquent taxes (sec. 77z) 258 Of new county to collect taxes in fractional parts taken from old counties for debts, when (sec. 1) 260 To collect such taxes, when (sec. 2a) 261 Compensation (sec. 2b) 261 Bond (sec. 2c) ; 261 Penalties for failure to execute bond and to faithfully perform his duties (sec. 5) 263 COURT OF CIVIL APPEALS. What litigation on cases in this court (n. 21) 52 CRIMINAL COSTS. Judge to certify costs; officers included (sec. 7588) 303 Clerk guilty of neglect is not entitled to (sec. 7589) 303 Not allowed on return of process " not found," when (sec. 7591). 303 Where there are several defendants (sec. 7592) 304 Provision is directory; defendant can take no advantage of its violation (n.) 304 Against State or count3'' audited by judge and attorney-general (sec. 7593) 304 Same; duty of comptroller and of county judge or chairman as to cost bills (sec. 7594) 304 Neglect of duty deprives clerk of fees (sec. 6394) 305 None except as allowed by law (sec. 7583) .• 306 Created by statute, and cannot be adjudged or taxed except where authorized by statute (n. 1) 306 Not to exceed specific fees in statute (n. 3) 307 Officers are entitled only to such as are fixed by statute (n. 4) . . . 307 Comptroller may revise (sec. 7594, n. 5) 304, 307 Clerk entitled to no fee for certifying or copying bill of costs against State or county, when (n. 6) 307 Retaxation of costs at instance of county judge;, illegal fees stricken out; judgment against State or county for illegal fees is void (n. 7) 307 No retaxation against State after costs are adjudged against prosecutor (n. 8) 308 Seal to certificate to bill of costs is not necessary (sec. 7595) 308 Comptroller may draw separate warrant in favor of any party interested (sec. 7596) 308 Court and attorney to examine and certify bill of costs, how; and court may hear proof (sec. 7598) 309 Discretion of court (sec. 7599) 309 Justice's costs to be certified to circuit court (sec. 7601) 309 Index. 383 Justice's certified bill of costs is subject of forgery by the fraud- ulent making thereof (n.) 309 Justice's cost bills examined; when disallowed (sec. 7602) 310 Disallowed in frivolous cases before justice (n.) 310 Justice's certificate that prosecution is not frivolous is not con- clusive (sec. 7603) 310 Justice's certificate is subject of forgery (n.) 310 In small offense cases (sec. 7604) 310 Of officers before justice (sec. 7605) 311 Includes what (sec. 7606) •. 311 For attaching witness in criminal case (n. 1) 311 Of boarding jury (n. 2) 311 Judgment for cost of boarding jury rendered at a subsequent term is void (n. 3) 311 Defendant is liable for his own costs, except when (n. 4) 311 Expenses of keeping criminal jury, how paid (sec. 7607) 312 Duty of county judge or chairman, and comptroller as to board of juries (sec. 7608) 312 For boarding jury collected and refunded, wheii (sec. 7609) 312 Judgment for costs, when (sec. 7610) 313 Taxed against prosecutor, when (sees. 7611-7613a, n.) 313, 314. No costs against defendant acquitted (sec. 7614) 315 Defendant acquitted is liable for his own costs, when (sec. 7615) 315 Statute requiring State or county to pay criminal costs construed to be limited to costs of prosecution, when (n. 1) 315 Statute modifies rule established before (n. 2) 315 May be taxed against State in court's discretion (n. 3) 315 Must be expressly allowed in court in discretionary cases (n. 4). 315 Defendant pays his own witnesses, when (sec. 7616) 316 Defendant pays all costs on conviction (sec. 7617) 316 Infants are liable for fines, costs, and torts (n.) '316 On peace warrants (sec. 7618) 316 Paid by State or county, when (sec. 7619) 316 Paid by State, when (sec. 7620) 317 Paid by county, when (sec. 7621).. 317 Defined (sec. 7622) 317 Liability of counties for costs in felony cases (n. 1) ........... . 318 Liability of counties for costs in small offense cases is limited in certain counties (n. 4) 318 State and county not liable for costs; exceptions (sec. 7622a)... 318 Payable by State (n., 1) 319 Payable by counties (n. 2) 320 Of acquittals (n. 3) 320 In cases of false pretense not paid by State (n. 7) 320 State is not chargeable with costs in unsuccessful disbarment. proceedings, but the relator must pay the costs (n. 8) 320 Witnesses living within five miles receive no pay (sec. 7622b) . ; . 320 384 Index. Statute is constitutional (n. 1) 321 Paid by State after conviction only on return of nulla bona (n. 2) 321 Costs in habeas corpus case paid by State or county, when (n. 3) 321 On acquittal of the felony and conviction of misdemeanor State paid her costs as to felony before Acts 1897, ch. 20 (n. 4) 321 Judge to render judgment and certify fees for jailer and keeper of jury (sec. 7623) 321 Bill of costs to show what in each case (sec. 7624) 322 What clerk to tax when State is liable (sec. 7625) 322 What when State is not liable (sec. 7626) 322 Jail and jury bills of costs, and their requisites (n.) 322 In cases transferred to federal courts to be paid by the State, when (sec. 7627) 323 By county, when (sec. 7628) 323 Warrants for costs (sec. 7629) 323 County pays witness fees on ignored indictment (n. 1) 323 County pays State tax, when (n. 2) 324 Defendant not required to pay or work out certain costs (n. 3) . . 324 County pays coroner (n. 4) 324 Cases separately certified (n. 5) 324 Appeal without bill of exceptions does not act as a supersedeas where the judgment is for a penalty less than death or im- prisonment for life (sec. 7629a) 324 Prisoner held at sheriff's cost, when (n.) 324 Retaxation of costs after return of nulla bona (n. 1) 325 Statute to authorize payment of costs; what bills of cost should show (n. 2) 325 General rules to be followed in making out bills of costs (n.) .... 325 How bills of cost should be made out (n. 2) 341 See Costs. See Fees. DEPUTIES. Appointed by county trustee; list of delinquent taxpayers fur- nished to (sec. 49e) 210 Fees on collections by distress or distress and sale (sec. 49d) . . . 210 Fees in collection of delinquent taxes, and not to be accounted for by trustee (sec. 49g) 211 Fees, costs, and commissions on delinquent polls (sec. 49h) 211 Monthly reports and payments as to collection of polls; fees retained (sec. 49j) 212 Final settlements and payments; credits for what (sec. 49k).... 213 Balance due on settlements may be recovered, how (sec. 491) . . . 213 Bond of constable or deputy (sec. 49m) 213 Entitled to no fee except where he collects the tax himself (sec. 49o) 214 Back poll taxes are payable without costs, when; refusal of offi- cial is high misdemeanor; fine (sec. 49p) 214 Index. 385 DESCRIPTION OF LAND. In tax assessments and in tax sales (sec. 4) 234 DISBARMENT PROCEEDINGS. State is not chargeable with costs in unsuccessful disbarment proceedings, but the relator must pay the costs (n. 8) 320 DISCRIMINATION. In privilege taxation against nonresidents renders city ordinance . or State statute void (n. 20) 16 Graduated on population (n. 1) 71 DISTILLERS. Privilege taxes for distilling brandy (sec. 4) 33 Privilege taxes for distilling whisky (sec. 4) 33 Liability for selling liquors (n. 14) 47 DISTRESS WARRANTS. To collect penalties for exercising a privilege without license (n. 15) 15 To be issued by clerk of county court for delinquent privilege tax (sec. 18b) ^ 91 May be issued notwithstanding motions on bonds of delinquent privilege taxpayers (sec. 28g) 164 After March 1, and have force of executions from judgments (sec. 49) 209 Statutes authorizing distress warrants are valid as " the law of the land," and as authorizing " due process of law " (n.) 209 Notice of sales under (sec. 49a) 210 Officers to have property at sale; costs, commissions, and ex- penses of removal (sec. 49b) 210 Garnishment lies, when; proceedings on; judgment (sec. 49c)... 210 Fees on collections by distress or distress and sale (sec. 49d) . . . 210 Trustee may appoint deputies; list of delinquent taxpayers (sec. 49e) 210 Void levy for taxes under a void paper from trustee enjoined (n.) 211 Record of levies and proceedings (sec. 49f) 211 Fees of deputies in collection of delinquent taxes, and not to be accounted for by trustee (sec. 49g) 211 Delinquent polls to be issued, when; commissions, fees, and "osts of constables or deputies (sec. 49h) 211 Poll tax list to be returned, when; payment afterwards (sec. 49i) 212 For false statements of merchants (sec. 77j) 254 But not to issue without notice, and assessment by clerk (sec. 77k) 254 To be issued by comptroller for taxes against railroads, tele- graphs, and telephones (sec. 16) 276 386 Index. For collection of taxes against interurban and street railroads (sec. 16) 289 DISTRICT ATTORNEYS. To prosecute ex officio violations of revenue law (sec. 19) 91 To attend to appealed inheritance tax cases in the circuit court (sec. 15c) ' 107 To prosecute taxpayers reported as not taking oath nor return- ing schedule (sec. lOi) 129 Failure to prosecute such taxpayers so reported is a misde- meanor in office (sec. lOj) 129 To institute proceedings to recover penalties under the general assessment lav/ (sec. 33a) 189 Misdemeanor not to observe the general assessment law (sec. 35) 189 To institute motions or suits for the State against county trustee, when (sec. 71c (2)) 241 To institute motions or suits for the county against the county trustee, when (sec. 71d (3)) 242 To assist State revenue agents, when (sec. 77r) 256 To prosecute ex officio offenses defined in the general assess- ment law (sec. 80a) 259 Receive salaries, and are not affected by statute disallowing fees for defects in indictment or for omission of duty (n.) 303 List of fees (sec. 6376) 325 Fees to be taxed in bill of costs (sec. 6377) 328 Fee where agreed verdict of not guilty upon defendant paying costs as on conviction (n. 1) 328 Counsel appointed to defend entitled to no fee from county or State (n. 2) 328 Joint defense, one tax fee (sec. 6381) 328 Only one fee against several joint defendants jointly tried (n. 1). 329 Several fees for several motions (n. 2) 329 And one tax fee for each defense (sec. 6382) 329 To receive salary (sec. 1) 329 Fees to go to State; to be reported and paid over (sec. 2) 329 Fees shall not be remitted or released (sec. 2a) 330 Fees taxed as costs for benefit of the State in civil and criminal cases (n. 1) 330 Statutes suspended or repealed by implication; State and coun- ties pay no fees to district attorneys (n. 2) 330 DOG AND PONY SHOWS. See Exhibitions, Etc. DOWER. No litigation tax on dower cases (n. 17) 51 Index. 387 EATING STANDS. Privilege taxes against (sec. 4) 33 ELECTRIC LIGHT AND POWER COMPANIES, ETC. Privilege taxes against (sec. 4) 33 ELEVATORS. See Warehouses and Elevators. EMBEZZLEMENT. Prosecutor taxed with costs in cases of, when (sec. 7613a) 314 EMPLOYMENT AGENCIES. Privilege tax against (sec. 4) 41 EXEMPTION FROM TAXATION. Privilege taxes is not an exemption from ad valorem tax (sec. 2a) 10 Of soldiers (sec. 2a) 10 Of manufactures does not exempt dealer (n. 6) 11 By charter contract before constitution of 1870 is binding (n. 23) 17 Of cities from taxation on waterworks (n.) 68 From inheritance tax (sec. 1, ns. 2-6) 92, 93 None except as provided (sec. 14a) 84 Legacies to religious, literary, or charitable institutions are not exempt from inheritance tax (n. 5) 113 Of what property enumerated (sec. 2) 113-117 Charter exemptions to be avoided as far as possible, except as to municipal taxes (sec. 25) 153 Charter exemption of shares of capital stock is not effective as against ad valorem taxation of capital stock, nor from privi- lege taxation (n. 1) , 154 Charter exemption effective as to ad valorem taxes, but not as to privilege taxes (n. 2) .* 154 Cannot be created now except (n. 4) 154 Charter exemption from taxation may pass under a decree of sale expressly so providing under a statute authorizing it (n. 3) 278 Elevator of railroad exempt as warehouse, and tracks to it ex- empt also (n. 4) 278 Exemption in one charter not conferred in another with same rights and privileges (n. 5) 278 Railroads cannot be exempted now (n. 6) 279 Exemption of capital, not an exemption of property of corpora- tion; exemption for a time, an express power to tax there- after (n. 7) 279 Of $1,000 allowed interurban and street railroads (sec. 7) 286 13 388 Index. EXHIBITIONS OF TRAINED ANIMALS AND DOG AND PONY SHOWS. Privilege taxes against (sec. 4) 34 EXPRESS COMPANIES. Privilege taxes against 68 Railroad liable as express company, when (n. 1) 68 Taxation of their wagons is not allowed (n. 2) 68 Cities cannot tax this privilege (n. 3) 69 License cannot be required of express agent by the State where he does any interstate business (n. 4) 69 Tax on the business of express companies is not a tax on inter- state commerce, when (n. 5) 69 EXTORTION. Officer demanding or receiving higher fees than are prescribed by law is guilty of extortion; penalty; misdemeanor in office (sec. 6353) 298 By officer is a misdemeanor (sec. 6714) 298 Defined (n. 1) : 299 To take fees not due (n. 2) 299 Demanding and receiving unearned commissions (n. 3) 299 No penalty or extortion in charge for unofficial work, when (n. 4) ; 299 Decision of court will protect officer (n. 5) 300 Honesty of purpose will not excuse (n. 6) . 300 Officer takes fees at his peril (n. 7) 300 Officer's return is not conclusive (sec. 8) 300 Municipal officer guilty of (n. 9) 300 Removal from office for extortion without indictment (n. 10) . . . 300 FALSE PRETENSES. State is not liable for costs in cases of (n. 7) 320 FEATHER RENOVATORS. Privilege taxes against (sec. 4) 35 FEES. Privilege taxes for dealing in (sec. 4) 35 To be collected by the secretary of State 293-296 Must be expressly provided by law (sec. 6352) 298 Taking fees not prescribed by law is extortion; penalty; misde- meanor in office (sec. 6353) 298 Taking greater fees than is legally allowed is extortion (sec. 6714) 298 Extortion to take fees not due (n. 2) 299 Decision of court will protect officer (n. 5) 300 Honesty of purpose will not excuse (n. 6) 300 Index. 389 Officer takes fees at his peril (n. 7) 300 List of fees to be kept posted up (sec. 6354) 300 Bill of costs to be made out (sec. 6355) 301 No fees until service is performed (sec. 6356) 301 No fees until duties performed, when (n.) 301 Commissions on costs (sec. 6357) 301 Except in their own favor (sec. 6358) 301 Court to decide questions under law of compensation (sec. 6359) 301 Supreme court will determine question of compensation of clerk • of lower court for making second transcript; rescission of pre- vious order (n.) 301 For duties performed by other officers (sec. 7584) 302 Not allowed city officers with fixed salaries, when (n.) 302 Provisions of section 7584 do not apply to judges and chan- cellors (sec. 7585) 302 No fees on escape (sec. 7586) 302 Allowed on escapes, when (sec. 7587) 302 Judge to certify costs; officers included (sec. 7588) 303 Clerk guilty of neglect is not entitled to fees, when (sec. 7589) . . 303 No fee to attorney in like case (sec. 7590) 303 District attorneys receive salaries, and are not affected by stat- ute disallowing fees for defects in indictment or for omission of duty (n.) 303 When allowed on return of process " not found " (sec. 7591) .... 303 Clerk entitled to no fees for neglect of duty, when (sec. 6394) . . . 305 No fees for im.perfect transcripts (sec. 6395) 305 In criminal cases must be expressly provided by law (sec. 7583) . 306 Only such fees as are provided by law allowed (n. 2) 306 County is liable for State's attorney's fee in motion cases, when (n. 9) 308 No fee for seal to certificate to bill of costs (n.) 308 None to prosecutor in misdemeanor cases (sec. 7600) 309 Fees of justice to be certified to circuit court (sec. 7601) 309 Sec Costs. See Criminal Costs. FERRIES. Privilege taxes against (sec. 4) 35 Licensed or franchised ferryman cannot enjoin unlicensed- fer- ryman, where each owns one bank (n. 1) 36 Ferries licensed, franchised, and established on rivers between this and other States (n. 2) 36 Ferries between States constitute interstate commerce (n. 3) . . . . 36 FIDUCIARIES. See Trustees. 390 Index. FLYING JENNIES. Privilege taxes against (sec. 4) 36 FOREIGN CORPORATIONS. Fee for filing charter (sec. 1 (10)) 293 Fee for certified copy of foreign charter of incorporation (sec. 1 (8)) 293 Fee for abstract of foreign charter of incorporation (sec. 1 (9)). 293 Privilege tax for coming into this State to do business (sees. 1 and 2) 297 Secretary of State to report and pay over taxes (sec. 3) 297 Not required to register abstracts of their charters in coun- ties (n.) 298 FORFEITURE. For failure of collector to pay over taxes collected (sec. 71a) .... 241 FORGERY. Justice's certified bill of costs is subject of (n.) 309 Justice's certificate that prosecution is not frivolous is subject of (n.) 310 FORTUNE TELLERS. Privilege taxes against (sec. 4) 37 FRAUDULENT BREACH OF TRUST. Prosecutor is taxed with costs, when (sec. 7613a) 314 FRUIT STANDS. Privilege taxes against (sec. 4) 37 FUTURES. Privilege taxes against (sec. 4) 37 GAMES. Privilege taxes against (sec. 4) 37 Not affected by Acts 1907, ch. 563 (n.) 38 GARNISHMENT. Lies for collection of taxes, when; proceedings on; judgment (sec. 49c) 210 GAS COMPANIES. Privilege taxes against (sec. 4) 38 GENERAL ASSESSMENT LAW. Basis of assessment (sees. l-8b) 113-123 Tax assessors (sees. 9-20d) 123-139 Corporations to be assessed, how (sees. 21-25) 139-155 Index. 391 Merchants (sees. 26-26e) 155-159 Privileges (sees. 27-29) 159-165 Back assessments or reassessments (sec. 30) 165-170 Code provisions as to back assessments and reassessments, and limitations 170-176 Lien for taxes (sec. 31) 176-178 County board of equalizers (sees. 32-32z) 178-188 Misdemeanors and penalties for violation of this act (sees. 33-36) 188-190 State board of equalization (sec. 37) 190-200 Assessments by county trustee (sec. 38) 200, 201 Miscellaneous provisions (sees. 39-46b) 201-208 Collection of taxes (sees. 47-49p) 208-214 Sale of land for taxes (sees. 50-66b) 214-236 Tax payment on owner's portion (sees. 67-67b) 236 Revenue collector (sees. 68-74f) 237-247 Relief for purchaser at tax sale for defective tax title (sec. 75) 247-249 County revenue commissioners (sees. 76-76d) 249-251 State revenue agents (sees. 77-77z) 251-258 Uniform system of bookkeeping (sec. 78) 258, 259 Miscellaneous provisions (sees. 79-81) 259, 260 See Assessment for Taxation. See Assessment of Railroads, etc. (ante, pp. 357-360). GOVERNOR. Member of board of equalization (sec. 12) 274, 287 May convene State tax assessors, when (sec. 18) 290 GUARDIANS. To be assessed for taxes, where (sec. 5, subsec. 3) 118 See Trustees. HABEAS CORPUS. Costs paid by State or county, when (n. 3) 321 Clerk's cost shall be what (n. 1) 341 HOMESTEAD CIDER. When intoxicating, is intoxicating liquor in the sense of the four mile law (n. 18) 47 HOP TONIC. When intoxicating, is intoxicating liquor in the sense of the four mile law (n. 18) 47 392 Index. HOTELS AND TAVERNS. Privilege taxes against (sec. 4) 39 Privilege of a sum and a percentage is valid; exemption of num- ber of rooms is valid (n.) 39 HUCKSTERS. Privilege taxes against (sec. 4) 39 ICE. Privilege tax against dealers in (sec. 4) 40 Two or more ice depots cannot be maintained under one license and one tax (n.) 40 IMPRISONMENT. No imprisonment to secure payment of tax on litigation (n. 19) . 52 "IN LIEU OF ALL OTHER TAXES." State privilege tax '' in lieu of all other taxes" excludes county and city privilege taxes (sec. 12) 82 State privilege tax " in lieu of all other taxes " precludes cities and counties from imposing a privilege tax (n.) 82 INHERITANCE TAX. See Collateral Inheritance and Succession Tax or Duty. INJUNCTION. Misappropriation of a special county tax may be enjoined, but collection not enjoined, because illegal for excessiveness, when (n. 8) 9 In suit to collect inheritance tax (sec. 15a) 107 Against a void levy for taxes under a void paper from the county trustee (n.) 211 INQUISITORIAL POWER. As to violation of the revenue law (sec. 19) ; 91 As to violation of the general assessment law (sec. 80) 259 INSURANCE. Taxpayer to state insurance on personalty (sec. 8b) 123 Amount carried by merchants to be ascertained by county court clerk, when (sec. 26e (4)) 158 INSURANCE COMMISSIONER. Insurance privilege taxes payable to; rate against what compa- nies; exemption of what companies (sec. 6) 75 Agent's privilege tax to be paid to, except when delegated to comptroller (sec. 6a) 76 Index. 393 INSURANCE PRIVILEGE TAXES. Rate against what companies; exemption of what companies (sec. 6) 75 Provision to obviate decision (n.) 76 Agent's tax rate to be paid to insurance commissioner, except when delegated to comptroller (sec. 6a) 76 INTELLIGENCE OFFICES. Privilege tax against (sec. 4) 40 INTERSTATE COMMERCE. Statute taxing auctioneers is not affected by interstate com- merce laws, if there be no discrimination (n. 1) 21 Merchandise brokers representing nonresident principals exclu- sively cannot be taxed by the State (n.) 24 Ferries between States constitutes (n. 3) 36 Agents for nonresident laundries are taxable (n.) 42 Lightning rod agents are exempt from tax because of interstate commerce, v/hen and when not (n.) 42 Tax on peddling is a privilege, and not a tax on the article, and not an interference with interstate commerce (n. 1) 61 Selling sewing machines of and in other States here, by samples, is interstate commerce, and not taxable (n. 2) 62 Brokers selling as such, and not for nonresident principals, are subject to the tax (n. 3) 62 License cannot be required of express agent by the State where he does any interstate business (n. 4) 69 Tax on business of express companies is not a tax on interstate commerce, when (n. 5) 69 Transportation is, and can be, taxed by the State (ns. 2 and 3). 70, 71 Soliciting of interstate passenger traffic cannot be taxed by city (n. 4) 71 Sleeping cars cannot be taxed on interstate business, but may when wholly within State (n. 1) 72 How it is where the business is mixed (n. 2) 72 Statute changed to obviate decisions (n. 3) 72 But the point of change not decided (n. 4) 72 Sleeping cars may be taxed on business within the State if ex- pressly limited to such business (n. 5) 72 Telegraph is subject to interstate regulations (n. 1) 73 License tax imposed generally on telegraph companies is void as against those doing interstate business (n. 3) 74 License fee may be required of telegraph company when con- fined to business within the State, when (n. 4) 74 Excepted from inhibition of exercise of privileges without pay- ing the tax (sec. 16) 89 394 Index. INTERURBAN RAILROADS. See Assessment of Interurban Railroad and Street Railroad Proper- ties for Taxes, and Collection Thereof. INTOXICATING BITTERS. Rules for determining when compound medicines are intoxi- cants (n. 19) 47 INTOXICATING LIQUORS. See Liquor Dealers. ITINERANTS. Privilege taxes against (sec. 4) 41 Manufacturer selling his medicine through a druggist in and at the druggist's store is not subject to tax on itinerants (n.) 41 JAILERS. Judge to render judgment and certify fees (sec. 7623) . . '. 321 Bills and their requisites (sees. 7624-7626, n.) 322 List of fees (sec. 6412) 349 For feeding witnesses (sec. 6413) 349 JUDGMENTS. Back assessments or reassessments are valid as original assess- ments, and have effect as judgments (sec. 30 (5d)) 16S Against revenue collector is not " back taxes " (n.) 176 JUDGMENTS BY MOTION. On privilege tax bonds of delinquents (sec. 28a) . 163 Upon default of such bondsman (sec. 28d) 164 Against county court clerk and county trustee for failure to perform duty as to back taxes against estates of decedents (sec. 30 (5h)) 169 See Motions. JUDICIAL SALES. Collection of taxes that are a lien on land sold under decree of court (sec. 969) 290 Reference at any time while funds are in court (n. 1) 291 Lien continues unlfess taxes are paid (n. 2) 291 But where taxes are ordered paid under this statute, the land is relieved of the lien (n. 3) 291 Tax lien is not lost by sale of land under decree (n. 4) 291 Taxes paid out of proceeds arising from foreclosure of mort- gage on lands upon court's own motion (n. 5) 291 State, county, and city not concluded as to taxes when not par- ties to suit; tax ordered paid without their intervention (n. 6). 291 Taxes paid by purchaser recovered from beneficiary of purchase money after case is out of court, when (n. 7) 292 Index. 395 Notice to tax collectors under reference to ascertain taxes (sec. 1) 292 Same rule as before statute (n.) 292 Fees of clerk and clerk and master (sec. 2) 293 JURY. Expenses of keeping criminal jury to be paid, how and when (ns. 2, 3; sees. 7607-7609) .' 311, 312 Jail and jury bills, and their requisites (n.) 322 Expenses of keeping juries paid as heretofore (sec. 7622a (3)) 318,^319 Compensation to be paid as heretofore (sec. 7622a (3)) 318, 319 Judge to render judgment and certify fees for jailer and keeper of jury (sec. 7623) 321 One bill for all cases, but each case shall show what (sec. 7624) . 322 What clerk to tax when State is liable (sec. 7625) 322 What when State is not liable (sec. 7626) 322 Jail and jury bills, and their requisites (n.) 322 JUSTICiES OF THE PEACE. Costs to be certified to circuit court (sec. 7601) 309 Certified bill of costs is subject of forgery by the fraudulent making thereof (n.) •: 309 Cost bills examined; when disallowed (sec. 7602) 310 Costs disallowed in frivolous cases before justice (n.) 310 Certificate that prosecution is not frivolous is not conclusive (sec. 7603) 310 Certificate is subject of forgery (n.) 310 Costs in small offense cases (sec. 7604) 310 Costs of officers before (sec. 7605) 311 List of fees in criminal cases (sec. 6387) 330 State is liable for costs of search warrant upon probable cause, though property is not found (n.) 332 LAUNDRIES. Privilege taxes against (sec. 4) 41 Agents for nonresident laundries are taxable (n.) 42 LEGACIES. Chargeable on real estate creates a lien on the real estate for the inheritance tax (sec. 7) 97 To religious, literary, or charitable institutions are not exempt from inheritance tax (n. 5) 113 LICENSE. Not binding on the State; rate increased (n. 1) 10 Prohibition without license is not necessary .(n. 5) 14 396 Index. Need not be actually issued (n. 6) 14 Withdrawn by legislature (n. 8) 14 Increased rate after license issued must be paid (n. 9) 14 Includes all essentials of the business (n. 10) 14 Unauthorized license is no protection against violation of the law (n. 28) 18 Issued before statute and postdated is not authorized, and the new rate prescribed must be paid (n. 16) 47 Increased rate after license issued must be paid (n. 17) 47 To liquor dealers cannot be issued for less than a quarter of a year (n. 20) 48 Cinnot be required of express agent by the State where he does an interstate business (n. 4) 69 State cannot require license for doing interstate business (n. 3) . 71 Renewal in case of death or sale (sec. 11) 81 Transfers were not allowed before statute authorizing same (n. 1) 81 Transferable, when (n. 2) 82 Exercise of privileges without license is forbidden (n. 2) 83 Exercise 'of a taxed privilege without license is prohibited (sec. 27) 159 Must show what (sec. 27a) 159 Must be registered by circuit couivt clerk; registration shall show what (sec. 27b) 160 Fee for registering and countersigning license, and making re- ports by circuit court clerk (sec. 27c) 160 Validity of license depends upon compliance with law; violation is a misdemeanor (sec. 27d) 160 Circuit court clerk or his deputy must countersign; violation is a misdemeanor (sec. 27e) 160 Applicants for license must give bond; notice of expiration (sec. 27f) 161 Clerk's fee for bond and license is one dollar (sec. 27g) 161 Must be renewed annually (sec. 27h (2)) 161 Term and locality of license (sec. 27i (2a)) 161 May be issued quarterly (Code, sec. 1003) 161 Settlement by quarters on ceasing business (n. 1) 161 Not to be issued for less than a quarter of a year (n. 2) 162 List of privileges for fixed periods (n. 3) 162 Transferable, when, and upon what terms (sec. 27j (2b)) 162 LIEN FOR TAXES. On realty for inheritance tax (sec. 3b) 94 On realty for inheritance tax charged on the realty (sec. 7) 97 For inheritance tax continues for five years (sec. 19) 110 Plaintiff taxed with costs, and lien declared in judgment for taxes, where the note, bill, bond, or chose in action or renewal sued on was not given in for taxation; unsettled accounts ex- cepted (sec. 14) 135 In assignments for creditors (sec. 27k (3)) 162 Back assessment or reassessment is no lien against bona fide purchaser; burden to show bona fide purchase; lien where there was no assessment at all (sec. 30 (4a)) 166 Of back assessments and reassessments (n. 5) 171 And extent of thereof (sec. 31) 176 Superior to mortgage lien (n. 1) 177 Lost bj'^ laches, when (n. 2) 177 Lien against whole estate, including remainder estate, though land is assessed to life tenant only (n. 3) 177 Statutes making taxes assessed to a life tenant a lien on re- mainder estate are constitutional (n. 4) 178 On railroad, telegraph, and telephone properties (sec. 15) 276 On railway cars of nonresidents (sec. 10) 282 On interurban and street railroads (sec. 15) 2S9 On land sold under decree of court to be collected, how (sec. 1). 293 Reference at any time while funds in court (n. 1) 291 Continues until taxes are paid (n. 2) 291 But where ordered paid under this statute, the land is relieved of lien (n. 3) 291 Not lost by sale under decree (n. 4) 291 LIGHTING COMPANIES. Privilege taxes against (sec. 4) 42 LIGHTNING ROD DEALERS OR AGENTS. Privilege tax against (sec. 4) 42 Agents exempt because of interstate commerce, when and when not (n. 1) 42 LIQUOR DEALERS. Privilege taxes against (sec. 4) 43 Wholesale and retail liquor dealers defined and distinguished (n. 1) 44 Prohibition of sales of intoxicating liquors, except by manufac- turers in wholesale packages or quantities, is valid (n. 2) 44 What constitutes wholesale packages or quantities of intoxicating liquors (n. 3) 45 Manufacturer may sell to dealers in unbroken packages of not less than five gallons without license (n. 4) 45 Manufacturer of liquor cannot retail to consumers without li- cense (n. 5) ." 45 May recover wholesale privilege tax paid under protest, when liable for retail (n. 6) 45 Producer of wine may sell without license, when (n. 7) 45 398 Index. Wine is fermented liquor; statute includes spirituous and fer- mented liquor (n. 8) 46 Druggists limited by statutes (n. 9) 46 Druggists selling within provisions of statute are not liable be- cause they have federal license (n. 10) ,. 46 Dealers must pay merchant's tax and this privilege (n. 11) 46 Social clubs liable (n. 12) 46 Licensed wholesale liquor dealers are not subject to tax for sell- ing beer as owners or as agents (n. 13) 46 Liability of distillers for selling liquors (n. 14) 47 Liability for privilege tax for selling liquor in violation of the four mile law (n. 15) , 47 License issued before this act and postdated is not authorized, and the new rate prescribed by this act must be paid (n. 16) . . . 47 Increased rate after license issued must be paid (n. 17) 47 Hop tonic and homestead cider, when intoxicating drinks, are intoxicating liquors in violation of four mile law (n. 18) 47 Rules for determining when Peruna and other compound medi- cines are intoxicants or " intoxicating bitters " (n. 19) 47 License for not less than a quarter of a year (n. 20) 48 LIST OF LANDS SOLD FOR TAXES. See Sale of Land for Taxes. LITIGATION TAX. Privilege taxes on litigation (sec, 4) 48 This tax is constitutional (n, 1) 49 ** Unsuccessful party " defined (n. 2) 49 Surety of unsuccessful party is not liable for the tax (n. 4) 49 Successful party not liable for the tax (n. 4) 49 Successful party is liable for such tax on litigation accrued at his instance when it cannot be collected out of the unsuccess- ful party (n. 5) 49 But if paid, collector is bound to account for it (n. 6) 50 Partial payment applied to tax (n. 7) 50 Litigation tax is not costs, but a specific tax for revenue (n. 8) . . 50 Tax not costs, though so declared by legislature, and no im- prisonment for nonpayment (n: 9) 50 Tax accrues when suit is commenced (n. 10) 51 Application and levy in civil and criminal cases (n. 11) 51 Litigation tax on motions, when (n. 12) 51 Motion against sheriff is subject to tax (n. 13) 51 But not in supreme court (n. 14) 51 Motion against clerk is subject to tax (n. 15) 51 Litigation tax on bastardy cases (n. 16) 51 No litigation tax on dower and certain guardian cases under this statute; former rule under statutes making no exceptions (n. 17) 51 Index. 399 Tax on trials for violation of town ordinances (n. 18) 52 Imprisonment to secure payment of (n. 19) 52 City not liable for; no imprisonment to secure payment of (n. 19) 52 Litigation tax on certiorari from justice, though compromised before trial (n. 20) 52 What litigation tax on cases in court of civil appeals (n, 21). ... 52 LIVERY, SALE, OR FEED STABLES. Privilege taxes against (sec. 4) 52 . Licensed livery stable keeper is not liable for privilege on bug- gies (n. 1 ) 52 Except in carrying passengers (n. 2) 53 Who are passengers defined, but rule changed by statute (n. 2) . 53 May keep a shed without paying additional privilege (n. 3) 53 LUMBER DEALERS. Taxed as merchants (sec. 4) 55 Logs and lumber are exempt as " articles manufactured from the produce of the soil," when (n. 1) 53 Manufactured articles are exempt, but a privilege tax may be laid for selling (n. 2) 53 MACHINES. Privilege tax against slot machines (sec. 4) 54 MAGIC LANTERN SHOWS. See Circuses and Menageries. MANUFACTURERS. To pay on property, but manufactured articles are exempt, when (sec. 22) 142 Selling their own manufactures taxed as merchants, when (n. 2) . 155 MANUFACTURES. Manufactured articles are exempt, but a privilege may be laid for selling, when (n. 2) 53 MARRIAGE LICENSE. Tax for (sec. 4) 54 MENAGERIES. . See Circuses or Menageries* MERCHANTS. Ad valorem and privilege tax against (sec. 3) 10 License not binding on the State; rate increased (n. 1) 10 Classified for privilege taxation (n. 2) 11 Taxed without declaring their business to be privileges (n. 3) . . . 11 Merchant tailor is liable for merchant's tax, when (n. 4) 11 400 Index. Merchant's capital invested in ^oods sold to nonresidents and sent beyond the State is taxed ad valorem, and not for privi- lege (n. 8) 12 How exemption is ascertained and tax computed when portion of merchant's capital is invested in goods sold to nonresidents and sent beyond the State (n. 9) 12 Constitution exempting merchant's capital invested in goods sold to nonresidents and sent beyond the State is self-executing (n. 10) 12 Exemption of taxes above the ad valorem on goods sold to non- residents and sent beyond the State does not exempt saloons from privilege (n. 11) 12 Merchant's capital not exempt from ad valorem tax on merchan- di.4e sold and sent beyond the State (n. 12) 13 Merchants and privileges classified, and each class of business required to pay privileges (n. 11) 15 Not undertaker, when (n.) ' 66 To pay ad valorem tax equal to that on other property (sec. 26). 155 Term " merchant " defined (sec. 26a and n. 1) 155 Manufacturer selling his own manufactured articles taxed as a merchant, when (n. 2) 155 Trustee selling stock assigned is not a merchant (n. 3) 156 Proprietor of a school furnishing his students is not a merchant (n. 4) 156 To make sworn statement and pay on average stock, or capital stock, when; how average stock is ascertained; "capital" de- fined (sec. 26b) (1)) 155 Method of arriving at taxable value of auction or commission stocks; sworn statement to be filed (sec. 26c (2)) 157 Capital in trade without stock of goods is taxable; sworn state- ment (sec. 26d (3)) 158 Citation by clerk for revisal and correction of sworn statement; power to investigate; insurance to be ascertained (sec. 26e (4)) 158 Tax to be collected by county court clerk (n. 3) 165 To be cited for reassessment, when (sec. 30 (5)) 166 Form of citation (sec. 30 (5a)) . . .' 167 Taxes collected by the county court clerk (sec. 47) 208 Examination of their reports (sec. 77i) . . .^ 254- Distress warrants for false statements (sec. 77j) 254 But distress warrants not to issue without notice, and assess- ment by clerk (sec. 77k) 254 MINERAL. Interest in land to be assessed to the owner thereof (sec. 5, sub- sec. 5) 119 Index. 401 MISDEMEANORS. Exercising privilege without paying tax is a misdemeanor; fine; interstate commerce excepted (sec. 16) 89 Appraiser under inheritance tax law is guilty of, when (sec. 13) . 104 For witness to refuse to take oath or make answer when required by tax assessor (sec. 12b) 131 For taxpayer to fail to fill out, swear to, or to return tax sched- ule; fine (sec. 12i) 133 To exercise a taxed privilege without a license (sec. 27) 159 To issue license not countersigned by circuit court clerk (sec. 27d) 160 For any one to countersign license for the circuit court clerk, except his deputy (sec. 27e) 160 For county judge or chairman or county court clerk or county register to neglect to perform duties under the general assess- ment law (sec. 32x) 187 For county judge or chairman or county court clerk or district attorney or revenue agent not to observe the general assess- ment law (sec. 35) 189 To be prosecuted where neglect of officials is certified by State board of equalization (sec. 37 (15)) 197 To counterfeit poll tax receipts; fine (sec. 42d) 205 Refusal of officials to receive payment of poll taxes without costs is a high misdemeanor, when; fine (sec. 49p) 214 To violate general assessment law; fine for school fund (sec. 71) 241 To refuse State revenue agents access to books and records; fine (sec. 77o) 255 For witness to fail to attend before railroad commissioners act- ing as State tax assessors (sec. 5a) .' 269 To fail to attend as a witness as to assessment value of inter- urban and street railroads (sec. 6c) 286 Extortion by officer is (sec. 6714) 298 MISDEMEANOR IN OFFICE. For clerk of county court to extend time for payment of priv- ilege taxes ; fine (sec. 18a) 90 For district attornej-^ to fail to prosecute taxpayers reported as not taking oath nor returning schedules (sec. lOj) 129 For county judge or chairman or county court clerk not to com- ply with law as to bond of tax assessor (sec. lOm) 129 For officer to demand or receive other or greater fees than those prescribed by law (sec. 6353) 298 MORTGAGES. Inferior to tax lien (n. 1) 177 402 Index. MOTIONS. Subject to litigation tax, when (ns. 12-15) 51 On privilege tax bonds of delinquents (sec. 28a) 163 Against county court clerk and county trustee for failure to per- form duties as to back taxes against estates of decedents (sec. 30 (5h)) 169 For penalties for failure to perform duties under the general as- sessment law (sec. 33) 188 Whose duty to institute (sec. 33a) 189 Against county trustee in name of the State for moneys not paid over (sec. 71b (1)) 241 For State may be brought by whom (sec. 71c (2)) 241 For county in name of State made by whom (sec. 71d (3)) 242 For city in name of State made by whom (sec. 71e (4)) 242 Fees of counsel (sees. 71f (5)-71e (8)) 242 Made by taxpayer in nam.e of State, upon leave of court, when; application for leave, and costs (sec. 71 j (9)) 242 Instituted by State revenue agents against delinquent collectors; and for what other dues (sec. 77f) 252 See Judgments by Motion. MUNICIPAL CORPORATIONS. Rate of taxation for (sec. 2) 7 Cannot create a privilege for taxation (n. 18) 16 Cannot discriminate in classes in privilege taxation (n. 19) 16 Discrimination against nonresidents renders ordinance void (n. 20) 16 But may levy different and varying rates on various privileges, unless restricted or oppressive (n. 21) 16 Oppressiveness of city ordinances discussed (n. 22) . 17 Litigation tax on trials for violation of ordinances (n. 18) 52 Not liable for litigation tax; and no imprisonment to secure pay- ment (n. 19) 52 Exempt from taxation on waterworks (n.) .' 68 Cannot collect a privilege tax on express companies, when (n. 3) 69 Soliciting of interstate passenger traffic cannot be taxed by a city (n. 4) 71 To pay no costs in motions upon bonds of delinquent privilege taxpayers (sec. 28f) 164 Taxes to be shown on tax book (sec. 40) 202 Taxes are payable, when (sec. 41) 203 Due and delinquent, when (sec. 48) 209 Motion or suit against county trustee in name of the State for city taxes (sec. 71b (1)) 241 Such motion or suit may be instituted by whom (sec. 71e (4)) , . . 242 Fees of city's counsel to be collected and reported (sec. 71i (8)). 242 Index. 403 Rules and provisions for collection of delinquent city taxes (sec. 7Z) 244 City taxes are delinquent, when (sec. 73 (1)) 244 Penalties on delinquent city taxes (sec. 73 (2)) 244 Interest in addition to penalty on delinquent city taxes (sec. 73 (3)) 245 Sales for delinquent city taxes (sec. 73 (4)) 245 Sale to include all delinquent lands (sec. 74b) 245 Taxes against railroads, telegraphs, and telephones collected as other city taxes (sec. 17) 276 Taxes against interurban and stfeet railroads to be collected as other city taxes (sec. 17) 290 Fee for each charter or certificate of (sec. 1 (14)) 293 NEWS COMPANIES. Privilege tax against 69 NOTICE. Delinquent inheritance tax collected upon (sec. 15) 106 To principal and sureties on privilege tax bond (sec. 28a) 163 Such notice is returnable to any Monday (sec. 28c) 164 Such notice must be for five days (sec. 28a and 28c) 163, 164 To property owner when assessment is increased (sec. 32g) 181 Sufficiency of notice cannot be considered or* passed upon by county trustee (n.) 181 Of five days for motions for failure to perform duties under gen- eral a.csessment law (sec. 33) 188 Statute is notice of biennial sessions of State board of equaliza- tion (sec. 37 (5a)) 192 Statute operates as notice (n. 1) 192 Required of increases in assessments made at any session except the biennial session (n. 2) 192 Not required for purpose of adopting a rule by the State board of equalization (n. 3) 192 Of sales under distress warrants (sec. 49a) 210 Form for advertisement of land for taxes (sec. 50) 214. 215 Four weekly insertions of same (sec. 50) 214, 215 Of resales of land for taxes without redemption (sec. 63a) 227 By clerk before making tax deed (sec. 64g) 230 Form of notice or publication (sec. 64h) 231 May be served by whom (sec. 64i) 231 Form of public notice substantially complied with; one number; expense prorated (sec. 64j) 231 Of application for writ of possession (sec. 65a) 232 Served by whom, and in what manner (sec. 65b) 232 To collectors under reference to ascertain taxes where land is sold under decree (sec. 1) 292 404 Index. ORIENTAL WARES AND NOVELTIES. Privilege tax against transient dealers in (sec. 4) 32 PARCEL CARS. Privilege tax against (sec. 4) 54 PARKS, PUBLIC. Privilege tax on (sec. 4) 54 PAWNBROKERS. •Privilege taxes against (sec. 4) . .% 54 PAYMENT OF TAXES. Taxes may be paid by part owner on his portion of the prop- erty (sec. 67) 236 Prerequisites to issuance of receipt (sec. 67a) 236 Application of this rule to all taxes (sec. 67b) 236 Redemption by purchaser of remainder interest (n.) 236 See Collection of Taxes. PEDDLERS. Taxed without declaring their business privileges (n. 3) 11 Privilege taxes against (sec. 4) 55 Peddlers of goods of other States here are subject to this privi- lege (n. 1) ! '. 56 Peddlers of maps selling to individuals alone shall pay what tax (n. 2) . ., 56 Tax on peddling is a privilege, and not a tax on the article, and not an interference with interstate commerce (n. 1) 61 PENALTIES. For exercising a privilege without license to be collected by dis- tress warrant (n. 15) 15 For failure of county court clerk to pay over inheritance tax (sec. 18) 109 For tax assessors or deputies not to take prescribed oaths (sec. lOe) 128 For tax assessor's failure to properlj'- assess property (sec. lOg) . 128 For tax assessors not to report list of taxpayers not taking oath nor returning schedules (sec. lOi) 129 For assessor to assess in wrong name (sec. 10k) 129 For assessors not to observe the general assessment law (sec. 101) 129 For tax assessor to act without bond (sec. 11a) .^ 130 For failure of assessor to examine realty in assessing same (sec. 12) 130 To be added in reassessing inadequately assessed property (sec. 30 (5e) (5g) (5h))..... ..1^8, W Index. 405 Penalty on taxes against life tenant does not attach to re- mainder estate for nonpayment by life tenant (n. 5) 178 For members of county board of equalizers to act without tak- ing oath (sec. 32q) 185 Or to fail to send tabulated statement of sales or certified copy thereof to State board (sec. 32r) 185 Or to equalize assessments at less than actual cash value (sec. 32t) 186 Or to neglect to report taxpayers not swearing to schedule or re- turning same (sec. 32v) 186 Or to fail to transmit answers of assessors (sec. 32w) 187 Failure in performance of duties; recoverable from assessors and equalizers by motion or suit (sec. 33) 188 Whose duty to institute proceedings (sec. 33a) 189 Compensation not to be drawn till duties performed by assessors and equalizers, except in certain counties (sec. 34) 189 To be sued for where neglect of officials is certified by State board of equalization (sec. 37 (15)) 197 For nonpayment of taxes (sec. 48) 208 May be imposed for nonpayment of taxes (n. 1) 209 For nonpayment of taxes by life tenant, does not attach to re- mainder estate (n. 2) 209 For failure of collector to pay over taxes collected (sec. 71a) . . . 241 On delinquent city taxes (sec. 73 (2) (3)) 244, 245 For failure of State revenue agents to comply with law to be deducted from salary (sec. 11-^) 257 For failure of county trustep to execute bond and faithfully per- form his duties in collection of taxes in parts of new counties taken from old counties (sec. 5) 263 For failure of railroads, telegraphs, and telephones to file sched- ule of properties for assessment (sec. 3) 268- For failure to file schedule for assessment of in.terurban and . street railroads (sec. 4a) 284 Attorney-general to sue for penalty (sec. 4b) 285 For officer to demand or receive greater fees than those pre- scribed by law (sec. 6353) 298 None in charge for unofficial work, when (n. 4) 299 PERJURY. Falsely swearing to tax schedule or statement by witness (sec. 12a) 131 Of witnesses before county board of equalizers (sec. 32h) 181 Of witness before railroad commissioners as State tax assessors (sec. 5a) 269 To testify fals.ely as to assessment value of interurban and street rfiilroads (sec. 6b) t 286 4o8 Index. PERSONAL REPRESENTATIVES. Duties as to inheritance tax (sec. 5) 95 Excess above fair compensation to executor is subject to inherit- ance tax (sec. 2) 94 Liable on bond for inheritance tax (sees. 1, 21) 92, 110 To be assessed for taxes where (sec. 5, subsec. 2) 118 PERSONALTY. Tangible personalty to be assessed where situated (sec. 5, sub- sec. 4) 119 To be assessed under what classification (sec. 8) 121-123 To be assessed, though deposited, incumbered, transferred, pledged, loaned, out of owner's possession, or out of this State (sec. 8a) 123 Taxpayer to state insurance on personalty 123 PERUNA. Rules for determining when it is an intoxicant (n. 19) 47 PHONOGRAPHS. See Machines. PHOTOGRAPHERS. See Artists and Photographers. PLAINTIFFS. Taxed with costs, and lien declared in judgment for taxes, where the note, bill, bond, or chose in action or renewal sued on was not given in for taxation; unsettled accounts excepted (sec. 14) 135 PLAYING CARDS. Privilege taxes for dealing in (sec. 4) 56 PLUMBERS AND GAS FITTERS. Privilege taxes against (sec. 4) 56 POLICE POWER. Power to create privileges for taxation does not depend on (n. 7) 14 POLL TAXES. Receipts to be furnished by the county (sec. 42a) 205 ■ -Receipts to be given poll taxpayer; realty and poll receipt com- - - bined (sec. 42b)..;.,. 205 Trustee charged with and to account for receipts (sec. 42c) . . . . . 205 Misdemeanor to counterfeit receipts; fine (sec. 42d) 205 • For schools shall be paid by whom (sec. 46) 206 AmouHt of such tax (sec. 46a) 207 Index. 407 Not to be received without the property tax, except; liability of trustee for doing so, when (sec. 46b) 207 Poll tax cannot be received without payment of property tax (n. 2) 208 Due and delinquent, when (sec. 48) 208 Delinquent polls to be issued, when; commissions, fees, and costs of constables or deputies (sec. 49h) 211 Poll tax list to be returned, when; payment afterwards (sec. 49i) 212 Monthly reports and payments by constables or deputies as to collection of poll taxes; fees retained (sec. 49j) 212 Final settlements and payments; credits for what (sec. 49k) 213 Balance due on settlements may be recovered from constables or deputies, how (sec. 491) 213 Bond of constable or deputy (sec. 49m) 213 Trustee is entitled to no fees except commissions (sec. 49n) 213 Deputy or constable is entitled to no fee, except where he col- lects the taxes himself (sec. 49o) 214 Back poll taxes are payable without costs, when; refusal of offi- cial is high misdemeanor; fine (sec. 49p) 214 List of insolvent polls to be retained by county trustee; collec- tions made and reported (sec. 69f) 239 Fees for collection of polls by distraint or sale (sec. 69g) 240 PONY SHOWS. See Exhibitions, Etc. POOL TABLES. See Games. POPULATION. Of any city, town, or taxing district includes what territory (sec. 13) 82 Obscurity and meaninglessness of this section (n.) 82 Population ascertained; town defined (sec. 15) 84 Of counties according to federal census of 1900 (n. 1) 85 Of incorporated cities, taxing districts, and towns of 1,000 in- habitants or over according to federal census of 1900 (n. 2) . . . 86 Of incorporated towns only is given in federal census of 1900 and in above table (n. 3) 86 Federal census of 1900 gives the population of incorporated towns only; construction and constitutionality of statute con- sidered in this view (n. 4) 87 PRESENT VALUE. Table showing present value of $1 payable at the end of any given number of years not exceeding 40, discounting at the rate of six per cent, compound interest (n. 7) 103 4o8 Index. PRESSING AND DYEING ESTABLISHMENTS. Privilege taxes against (sec. 4) 34 PRIVILEGE TAXES. County cannot discriminate in (n. 9) 9 Not an exemption from ad valorem tax (sec. 2a) 10 Special privilege acts not repealed (sec. 2a) 10 Exemption of soldiers (sec. 2a) 10 Merchants classified for (n. 2) 11 Merchants and peddlers taxed without declaring their business to be privileges (n. 3) 1 Merchant tailor is liable for, when (sec. 4) 1 To be paid, though property is exempt (n. 5) 1 Exemption of manufactures does not exempt dealer (n. 6) 1 Upon the business rather than upon the goods (n. 7) 1 Not upon merchant's capital invested in goods sold to nonresi- dents and sent beyond the State (ns. 8-12) 12, 13 Separate list of privileges in- assessment law is not necessary, nor need all be included in such list (n. 1) 13 Privilege defined (ns. 2, 3) 13 Nothing except what is included in the definition of a privilege can be so declared and taxed as such (n. 4) 14 Prohibition without license is not necessary (n. 5) 14 License need not be actually issued (n. 6) 14 Power to create privileges does not depend on '* police power " (n. 7) 14 License withdrawn by legislature (n. 8) 14 Increased rate after license issued must be paid (n. 9) 14 License includes all essentials of the business (n. 10) 14 Merchants and privileges classified, and each class of business required to pay privileges (n. 11) 15 Graduation and classification of privileges is valid (n. 12) 15 Same business not to be twice taxed, unless expressly so pro- vided (n. 13) 15 Privilege tax sued for as a debt (n. 14) 15 Penalties for exercising privilege without license to be collected by distress warrant (n. 15) 15 Repeal of statute does not afifect accrued liability (n. 16) 15 Privilege in each county (n. 17) 15 Municipal corporations cannot create privileges (n. 18) 16 ]\Iunicipal corporations cannot discriminate in classes (n. 19). ... 16 Discrimination against nonresidents renders city ordinance or State statute void (n. 20) 16 But cities may levy different and varying rates on various privi- leges, unless restricted or oppressive (n. 21) 16 Oppressiveness discussed (n. 22) 17 Charter contract of exemption before constitution of 1870 is binding (n. 23) 17 Index. 409 Contracts in violation of privilege tax laws are void (n. 24) 17 No presumption of violation (n. 25; 18 Criminal law is not repealed by making its violation a privilege (n. 26) 18 Unlawful business is not legalized by levy of privilege tax there- on (n. 27) 18 Unauthorized license is no protection (n. 28'i 18 Payable to county court clerk (sec. 4) ' 18 List and rate of (sees. 4-10) 18-81 Payable to the comptroller (sec. 5) 68 '* In lieu of all other taxes "' excludes county and city privilege taxes (sec. 12) 82 State tax " in lieu of all other taxes " (n.) 82 Population of any city, town, or taxing district includes what territory (sec. 13) 82 Obscurity and meaninglessness of this section (n.) 82 Tax to be paid whether a business is made of the privilege or not (sec. 14) 83 Words taxing an act not constituting a business are nugatory {n. 1) 83 Exercise of privileges without a license forbidden (n. 2) 83 Licensee cannot do another privileged business (n. 3) 84 No exemptions except as provided (sec. 14a) ." . 84 Population ascertained; town defined (sec. 15) 84 Population of the counties according to the federal census of 1900 (n. 1) 85 Population of incorporated cities, taxing districts, and towns of 1,000 inhabitants or over according to the federal census of 1900 (n. 2) .' - 86 Population of incorporated towns only is given in federal cen- sus of 1900 and in the table (n. 3) : 86 Federal census of 1900 gives the population of incorporated towns only; construction and constitutionality of statute con- sidered in this view (n. 4) 87 Exercising privilege without paying tax is a misdemeanor; fine; interstate commerce excepted (sec. 16) 89 Reports of collections; when to be made and what to show (sec. 17) ■ 89 Reports of collections; penalty for failure (sec. 17a) 90 Comptroller's report; blanks for clerks (sec. 17b) 90 Penalty of delinquency of privilege taxpayers (sec. 18) 90 Clerk of county court to collect promptly; extension of time is a misdemeanor in office (sec. 18a) 90 Clerk of county court to issue distress warrant for delinquent privilege tax (sec. 18b) 91 Judge to charge grand jury; inquisitorial power; district attor- ney to prosecute ex ofiicio, when (sec. 19) 91 4IO Index. Laws of same session not repealed (sec. 20) 91 Exercise of privilege without a license is prohibited; violation is a misdemeanor; fine (sec. 21) 159 Exercise of privilege without paying the license tax invalidates the contract (n. j 159 License must show what (sec. 27a) 159 License must be registered by circuit court clerk; registration shall show what (sec. 27b) 160 Fee for registering and countersigning license, and making re- ports by circuit court clerk (sec. 27c) 160 Validity of license depends upon compliance with law; violation IS a misdemeanor (sec. 27d) 160 Circuit court clerk or his deputy must countersign license; vio- lation is a misdemeanor (sec. 27e) 160 Applicants for license must give bond; notice of expiration (sec. 27f) 161 Clerk's fee for bond and license is one dollar (sec. 27g) 161 License to be renewed annually (sec. 27h (2)) 161 Term and locality of license (sec. 27i (2a)) 161 License may be issued quarterly (Code, sec. 1003) 161 License cannot be issued for less than a quarter (n. 2) 162 List of privileges for fixed periods (n. 3) 162 License is transferable, when, and upon what terms (sec. 27j (2b)) 162 All taxes must be paid before the sale of the business; prior lien in assignments for creditors (sec. 27k (3)) 162 Clerk to turn over bonds of delinquents to county attorney, or . what other attorney, when; receipts (sec. 28) 163 Notice to principal and sureties; judgment by motion (sec. 28a). 163 Jurisdiction of county court to enforce collection of this reve- nue (sec. 28b) . . . ■. 163 Notice of five days returnable to any Monday (sec. 28c) 164 Judgment by motion upon default (sec. 28d) 164- Fees of county court clerk (28e) 164 State, county, and city to pay no costs (sec. 28f) 164 Distress warrants notwithstanding these suits (sec. 28g) 164 County court clerks to collect privilege and merchant's taxes; fines and penalties (sec. 29) 164 Privilege and merchant's taxes collectible by county court clerk (n. 3) 165 Citation for reassessment of merchants inadequately assessed (sec. 30 (5)) 166 Form of citation (sec. 30 (5a)) 167 Tax assessor to return names of persons exercising taxed privi- leges (sec. 45) 206 Duty of county judge or chairman; clerk to examine and report as to privileges (sec. 45a) 206 Index. 411 To be collected by county court clerk (sec. 47) 208 Collectible by whom (n.) 208 Delinquents may be sued by State revenue agents (sec. 77g)'. ... 254 Against foreign corporations for coming into this State to do business (sees. 1 and 2) 297 PROSECUTOR. In misdemeanor cases is not entitled to fees as such or as a wit- ness (sec. 7600; 309 Taxed with costs of malicious or frivolous prosecution (sec. 7611) 313 Liable for costs, when and when not (n. 2) 313 Taxed with costs before justices, when (sec. 7612) 314 Taxed with costs for willful abandonment of the prosecution (sec. 7613) 314 Costs adjudged against prosecutor only in clear cases; power a legal discretion (n. 1) 314 No retaxation of costs taxed against prosecutor because of re- turn of nulla bona (n. 2) 314 Taxed with costs in -cases of embezzlement and fraudulent breach of trust, when (sec. 7613a) 314 PUBLICATION. See Advertisement. PURCHASER AT VOID TAX SALE. Right of subrogation and enforcement of lien against land bought under tax sales that cannot be recovered; chancery ju- risdiction regardless of the amount; bill for recovery of land and enforcement of right of subrogation (sec. 75) 247 Entitled to be reimbursed for taxes and interest, but hot for costs and penalties, and must pay costs of suit (n. 1) 248 To be reimbursed for what (n. 2) 248 Reimbursements for taxes paid (n. 3) * 249 RAILROADS. Liable as an express company, when (n. 1) 68 Privilege taxes against (sec. 5) 69 Privilege tax estops State to deny exemption from ad valorem tax (n. 1) , 70 Transportation is commerce (n. 2) 70 State cannot require license for doing interstate commerce (n. 3) 71 Soliciting of interstate traffic cannot be taxed by city (n. 4) 71 See Assessment of Railroad, Telegraph, and Telephone Properties for Taxes, and Collection Thereof. See Assessment of Railway Cars of Nonresidents Within This State for Taxes, and Collection Thereof. 412 Index. See Assessment of Interurban Railroad and Street Railroad Prop- erties for Taxes, and Collection Thereof. RAILROAD COMMISSIONERS. Perform the duties of State tax assessors (sees, la-lf, n.)...265, 266 See Assessment of Railroad, Telegraph, and Telephone Properties for Taxes, and Collection Thereof. See Assessment of Railway Cars of Nonresidents Used Within This • State for Taxes, and Collection Thereof. See Assessment of Interurban Railroad and Street Railroad Proper- ties for Taxes, and Collection Thereof. RAILROAD TERMINAL COMPANIES. Privilege taxes against (sec. 5) 71 Discrimination in tax graduated on population of counties (n. 1) 71 Corporation for convenience, and not profits, recognized for rail- roads owning the stock, is subject to this tax (n. 2) 71 RANGES AND CLOCKS. Privilege tax against dealers in (sec. 4) . 57 REAL ESTATE. To be assessed where situate (sec. 5, subsec. 4) 119 Assessment must show what (sec. 6) 120 Mineral, timber, or interests to be assessed to the owner there- of (sec. 5, subsec. 5) 1 19 Remainder estate not to be assessed separately to the remain- derman (n.) 120 Vital irregularities and insufficiencies render assessments and sales void (n. 2) 120 Rules governing in the assessment of; parol testimony to sup- ply description (sec. 7) 121 REAL ESTATE DEALERS AND AGENTS. Privilege taxes against (sec. 4) 57 Real estate agent is entitled to commissions, when (n. 1) 58 Real estate agent is not entitled to commissions, when (n. 2) . . . . 58 Real estate agent is, in the absence of a special contract, entitled to the usual and customary commissions (n. 3) 58 REASSESSMENTS FOR TAXATION. Where improvements are destroyed (sec. 19) 138 Where permanent improvements have been made (sec. 20) 138 Where there has been a change of ownership, and report there- of (sec. 20a) 138 No reassessment, where the change of ownership is entire, but change to be noted (sec. ^Ob) 138 Where there has been a change of ownership of real estate in Index. 413 part, or divisions, and where improvements have been made or destroyed (sec. 20c) 138 Of property inadequately assessed by reason of fraud, etc. (sec. 30 (2)) 165 Of property inadequately assessed by fraudulent procurement or connivance of owner; or gross inadequate assessment (sec. 30 (3)) 165 In case of assessment at less than actual cash value, citation to issue to owner, by whom and at whose instance (sec. 30 (5)). . 166 • Form of citation (sec. 30 (5a) ) 167 See Back Assessments for Taxation. See Back Assessments and Reassessments for Taxation. RECEIPTS. To be given by county trustee for taxes; provisions as to (sees. 42-42d) 204, 205 REDEMPTION. Of land sold for taxes by whom, and by paying what, and within what time (sec. 56) 220 Penalty and interest on subsequent taxes to be paid by the pur- chaser (sec. 56a) 220 Clerk's compensation (sec. 56b) 220 Within two years after disabilities are removed; improvements (sec. 56c) 221 Record of, to be made by circuit court clerk (sec. 61) 224 Not where land struck off to State treasurer is resold, when (sec. 63a) 227 Deed to be made after time for redemption has expired (sec. 64) . 228 Taxes collected on, to be paid over monthly (sec. 66) 233 Report shall show what (sec. 66a) 233 To be entered on original tax books (sec. 66b) 233 P)y purchaser of remainder interest (n.) 236 Sale of railroad, telegraph, and telephone properties for taxes free from (sec. 161) 276 REGISTRATION.. Tax deed to be entered and indorsed before (sec. 62b) 225 Seal authenticates tax deed for registration (sees. 62e, 64b). .226, 229 RELEASEMENT. No releasement of revenue collectors (sec. 71k (10)) 243 REMAINDER ESTATES. Inheritance tax on, payable after termination of life or other es- tate (sec. 3) 94 Inheritance tax on contingent remainder interest is not payable 414 Index. until it comes into enjoyment, and bond for same is not re- quired; rule as to vested remainder interests is reserved (n. 1). 95 Life tenant becoming owner of the remainder interest is liable for the tax on the remainder interest at that time; merger of estates (n. 2) 95 Tax to be paid on contingent estates (n.) 96 Not to be assessed separately to remainderman (n.) 120 Tax lien against whole estate, including remainder estate, though land is assessed to life tenant only (n. 3) 177 Statutes making taxes assessed to a life tenant a lien on re- mainder estate are constitutional (n. 4) 178 Penalty on taxes against life tenant does not attach to remainder estate for nonpayment by life tenant (n. 5) 178 Redemption by purchaser of (n.) 236 RENTS. Of lands struck off to State treasurer for taxes to be credited on the taxes (sec. 54c) 218 Tenant in possession of land sold for taxes may become tenant of purchaser without payment of rent, when (sees. 52, 54d, 57a, and 65c) 216, 219, 222, 232 REPEAL OF STATUTES. Levying a privilege tax does not affect accrued liability (n. 16). 15 Revenue law repeals all laws in conflict, except those of the same session (sec. 20) 91 In conflict with general assessment law; operation limited (sec. 79) , 259 REPORTS. Of collection of privilege taxes, when to be made and what to show (sec. 16) 89 Of collections; penalty for failure (sec. 17a) .* 90 By comptroller as to privilege taxes (sec. 17b) 90 Uniform blanks for reports to be furnished to clerks by comp- troller (sec. I7b) 90 Of appraisements under inheritance tax law to be made monthly to comptroller by clerks of county courts (sec. 14) 104 RESTAURANTS AND CAFES. Privilege taxes against (sec. 4) 59 Validity and constitutionality of tax is questioned (n.) 59 Index. 4 1 5 REVENUE BOND. Of county court clerk covers inheritance tax (sec. 17) 109 REVENUE COLLECTORS. See Comptroller of the State Treasury. See County Court Clerk. See County Trustee. See Secretary of State. See State Treasurer. REVENUE COMMISSIONERS. See County Revenue Commissioners. REVENUE LAW. Giving subjects and rates of taxation 7 See General Assessment Law. SALE OF LAND FOR TAXES. Real estate to be advertised for sale; form of notice; four weekly insertions (sec. 50) 214 On the first Monday in June and succeeding days (sec. 51) 215 Tax deed must show tax sale at time and place required by law (n.) 215 Parties in possession become tenants of purchasers, but not liable for rents, when (sec. 52) 216 Land struck off to State treasurer, when (sec. 53) 216 Certified list of lands so struck off to State treasurer in book form showing what; a record of office of circuit court clerk (sec. 53a) 216 Certified list operates as a conveyance to State treasurer (sec. 53b) 217 Form of certificate to list (sec. 53c) : 217 Tax title is invalidated by noncertification of list of lands struck off to State treasurer (n. 1) 217 Certification of list does not relate back (n. 2) 217 Confirmation of tax sale without certified list is void, when (n. 3) 217 Statute is different as to list of lands sold to individuals (n. 4) . . . 217 Assessment and list of sales must show items and amounts in dollars and cents; mere. figures without more are insufficient, and render sale void (n. 5) 217 Certified copy of list for comptroller (sec. 53d) 218 Lands so struck off to State treasurer shall not be sold again, except (sec. 54) 218 Subsequent taxes to be reported to circuit court clerk (sec. 54a) . 218 Land so sold to be assessed to owner of redemption (sec. 54b) . . 218 Rents of lands so struck off to State treasurer to be credited on taxes (sec. 54c) 218 41 6 Index. Writs of possession to gain possession of such land (sec. 54d) . . . 219 List of lands sold to individuals to be filed with circuit court clerk: defects do not affect titles (sec. 55) 219 List operates to vest title; purchaser is entitled to certificate (sec. 5Sa) 219 Form of certificate to list of lands sold to individuals (sec. 55b) . 219 Redemption by whom, and by pa3nng what, and within what time (sec. 56) 220 Penalty and interest on subsequent taxes to be paid by the pur- chaser (sec. 56a) 220 Clerk's compensation (sec. 56b) 220 Redemption within two years after disabilities are removed; improvements (sec. 56c) 221 Decree of circuit court vesting title in purchasers (sec. 57) 221 Form of such decree (sec. 57) 221 Writs of possession awarded to purchasers (sec. 57a) 222 Decrees on former sales; writ of possession (sec. 57b) 222 Writ of possession shall not be issued except under order of court (sec. 57c) 222 Provision applicable to all sales made and to be made (sec. 57d) . 223 Authority vested in circuit court for purposes of this act (sec. 57e) 223 Comptroller's authority and duty as to land struck off to State treasurer for taxes; approved by governor and attorney-gen- eral (sec. S7f) 223 Purchaser at second sale acquires title superior to that of pur- chaser at first tax sale (sec. 58) 223 Resale upon purchaser's failure to pay; struck off to State treas- urer, when (sec. 59) 223 Excess of purchase money over taxes and costs to be paid to clerk for owner; liability for (sec. 60) 224 Record of redemption (sec. 61) 224 Lands struck off to State treasurer may be sold at private sale (sec. 62) 224 Conveyance by clerk upon payment of what, when; clerk's fee (sec. 62a) 225 Deed to be entered by county court clerk, and indorsement to be made thereon before registration; clerk's fee (sec. 62b).... 225 Form of deed (sec. 62c) s 226 Deed is prima facie evidence of statements (sec. 62d) 226 Recitals are prima facie evidence only, and may be contradicted, when (n.) 226 Seal authenticates deed for registration (sees. 62e, 64b) 226, 229 Clerk to sell land to highest bidder, when; proceeds to be dis- tributed, how (sec. 62f) 227 Writ of possession to be ordered (sec. 62g) 227 Index. 417 Clerk to make deed in lieu of back tax attorney's certilicate un- der Acts of 1895 (sec. 63) 227 Land struck off to State treasurer to be resold by circuit court clerk, when, and without redemption; notice (sec. 63a) 227 Deed to purchaser to be made by clerk of circuit court after time for redemption has expired; clerk's fee (sec. 64) 228 Porm of deed (sec. 64a) 228 Deed is an assurance of perfect title, not to be invalidated, ex- cept for what (sec. 64c) 229 Statute of limitation against suit to invalidate tax title; disabili- ties provided for (sec. 64d) 229 Payment or tender of amount of bid and subsequent taxes, in- terest and charges before suit (sec. 64e) 229 Writ of possession to purchaser (sec. 64f) 230 Notice by clerk before making deed; cost thereof; clerk's fee; what to be paid by purchaser (sec. 64g) 230 Form of notice or publication (sec. 64h) 231 Form of public notice substantially complied with; one num- ber; expense prorated (sec. 64j) 231 Writ of possession to purchaser to be issued upon order of court, when (sec. 65) 232 Notice of application for writ of possession (sec. 65a) 232 Notice served by whom and in what manner (sec 65b) 232 Tenant in possession may become tenant of purchaser without payment of rent, when (sec. 65c) 232 Clerk of circuit court to report and pay over monthly taxes col- lected on redemption and purchases; liability and penalty for failure (sec. 66) 233 Report shall show what (sec. 66a) 233 Redemption or purchase to be entered on original tax books (sec. 66a) 233 Jurisdictional facts and requisites of statutory tax sales in sum- mary proceedings (n. 1) 233 Summary proceedings may be authorized by statute (n. 2) 234 Condemnation judgment must show the lands to be in the county, and from proper sources (n. 3) 234 Description in tax assessments and sales (n. 4) 234 Payment by any one discharges the land (n. 5) 234 Personalty must be exhausted (n. 6) 235 Caveat emptor rule applies to tax sales (n. 7) 235 What title purchaser obtains (n. 8) 235 For delinquent city taxes (sec. 73 (4)) 245 Advertisement of delinquent land for taxes of 1906, and for all other years (sec. 74) 245 Sale to include all delinquent lands; same method as for sales of land for taxes for 1906 (sec. 74b) 245 Separate report of sales of land for delinquent taxes prior to 1906; trustee's compensation (sec. 74c) 246 41 8 Index. Pending suits are not barred nor affected by such sales, where the State becomes purchaser (sec. 74d) 246 Comptroller authorized, through revenue agents, to prosecute pending suits, and to make settlements (sec. 74e) 246 Compensation to be fixed; State, counties, and cities are not liable for costs, fees, and charges (sec. 74f) 264 SCHEDULE FOR TAX ASSESSMENT. Assessors to report to district attorney list of taxpayers not tak- ing oath nor returning schedules (sec. lOh) 128 To be taken by tax assessor from taxpayers (sec. 12, subsec. 2) . . 130 Falsely swearing to schedule or to statement as a witness is per- jury (sec. 12a) 131 To be filled out and sworn to (sec. 12d) 132 Assessor to require oath to be made to schedule (sec. 12d) 132 Assessment to be made upon failure to fill out and return sched- ule (sec. 12e) 132 Names to be noted as assessed without schedule, and notice to taxpayer noted (sec. 12f) 132 Oath to schedule; assessor, not taxpayer, to value list (sec. 12h) . 133 Misdemeanor -to fail to fill out, swear to, or to return schedule; fine (sec. 12i) 133 Assessor to furnish schedule and require it to be filled out and sworn to (sec. 12j) 133 Comptroller to prepare and furnish schedules for county court clerks to furnish assessors (sec. 15) 135 Shall contain what questions (sec. 15a) 135 For corporate property and bank stock (sec. 15b) 136 Prescribed oaths to be appended to all schedules (sec. 15c) 136 Failure to return schedule to be reported to county judge or chairman; his power to cite and examine party, and make as- sessment (sec. 17) 137 Schedule under oath to be filled out by corporation official and returned by assessor, as record, and to show what (sec. 22d) . . 144 Presidents of banks or certain other corporations to make sworn schedule showing what (sec. 24d) 150 To be filed by railroads, telegraphs, and telephones (sec. 2) 267 Of railroads (sec. 2a) 267 Of telegraphs and telephones (sec. 2b) 267 To be verified and filed; penalty for failure (sec. 3) 268 To be furnished by comptroller to railroad commissioners and State tax assessors (sec. 4) 268 Of railway cars of nonresidents to contain sworn statements of what (sec. 3) 280 Of railway cars of nonresidents to be received by comptroller and returned to assessors; additional evidence; books open to owners (sec. 4) 281 Index. 419 Of interurban and street railroads to be filed with comptroller showing what (sec. 3) 284 Affidavit to schedule (sec. 4) 284 Tail tire to file schedule waives right to contest assessed value, and incurs penalty of $1,000 (sec. 4a) 284 Attorney-general to sue for penalty (sec. 4b) 285 Assessors^ to receive schedules from comptroller, and ascertain value (sec. 5) 285 Evidence and information in addition to schedules; in writing: records to be open (sec. 10) 287 SCHOOL FUND. Fine for certain misdemeanor in violating the general assess- ment law goes to (sec. 71) 241 SEAL. Authenticates tax deed for registration (sees. 62e, 64b) 226, 229 To certificate to bill of costs is unnecessary (sec. 7595) 308 No fee for seal to certificate to bill of costs (n.) 308 SECRETARY OF STATE. Tax on corporation charters or amendments payable to (sec. 9) . 80 Tax on consolidation of corporations payable to (sec. 10) 81 Fees and taxes to be collected by (sec. 1) 293 Fees for charters for general welfare (sec. 2) 294 , P'ees for amendments of charters (sec. 1) 294 Fees to be turned into State treasury (sees. 5 and 3) 294, 295 Fees under Code (sec. 6367) 295 No fee for State or county officers' commissions (sec. 6368) 296 To collect what taxes from foreign corporations for the privi- lege of coming into this State to do business (sees. 1-3) 297 SECURITY DEALERS AND LOAN AGENTS. Privilege taxes against 60 Shaving notes and other evidences of indebtedness means buy- ing them at a discount (n. 1) 60 Buying a single note is not taxable, when (n. 2) 60 SEWING MACHINES. Privilege taxes for dealing in 60 Tax on peddling is a privilege, and not tax on articles, and not an interference with interstate commerce (n. 1) 61 Selling machines of and in other States here, by samples, is in- terstate commerce, and not taxable (n. 2) 62 Brokers selling as such,- and not for nonresident principals, are subject to the tax (n. 3) 62 14 420 Index. SHAVING. Notes and other evidences of indebtedness means buying them at a discount (n. 1 ) 60 SHERIFFS. List of fees in criminal cases (sec. 6402) 343 Compensation for bringing back absconding criminals (s§c. 1).. 346 Itemized and sworn statement of expenses to be made (sec. 2). . 347 Such expense not chargeable to State, but to counties (n.) 347 Fees for conveying prisoners to penitentiary (sec. 6403) 347 SHOWS. See Exhibitions, Etc. SKATING RINKS. Privilege taxes against 62 SLEEPING CAR COMPANIES. Privilege tax against (sec. 5) 71 Cannot be taxed on interstate business, but may, when wholly within the State (n. 1) 72 How it is where the business is mixed (n. 2) 12 Statute changed to obviate decisions (n. 3) 72 But point of change not decided (n. 4) 72 May be taxed on business within the State, if expressly limited to such business (n. 5) 12 SODA FOUNTAINS. Privilege taxes against (sec. 4) 62 SOLDIERS. Exemption from privilege taxes (sec. 2a) 10 STATE. May bid in land sold for inheritance tax, and pay costs; writ of possession (sec. 14b) 105 To pay no costs in motions on bonds of delinquent privilege tax- payers (sec. 28f) 164 Motions in the name of the State against the county trustee (sees. 71b (l)-71j (9)) ^ 241, 242 STATE BOARD OF EQUALIZATION. Creation of board, powers and duties (sec. ?>1) 190 Organization, sessions, quorum, records to be made and kept (sec. 37 (1)) 190 Action of two members is valid; action is not vitiated by pres- ence of a third person as substitute for absent member, . when (n.) 190 No compensation; oath to be taken and filed (sec. 37 (2)) 190 Index. 42 1 Board is constituted upon taking and filing oath (sec. 2>7 (3)) 191 Rules, regulations, and forms for its own use and county board's use; evidence (sec. Z7 (4)) 191 Biennial sessions or equalization sessions to be held, when and where (sec. 37 (5)) 191 Statute is notice (sec. 37 (5a)) 192 Statute operates as notice (n. 1) 192 Notice required of increases in assessments made at any session except the biennial session (n. 2) 192 Notice is not required for purpose of adopting a rule, when (n. 3) 192 Biennial session continues to the 15th of September; contin- uances (sec. 37 (5b)) 192 Biennial session adjourned to other places (sec. 37 (5c)) 192 Board may send its members for information and evidence; ap- peals (sec. 37 (5d)).. 192 Other sessions to be held, when (sec. 37 (5e)) 193 Taxpayers may complain of inadequacy and inequality of assess- ments, how and when (sec. 37 (6)) , 193 Remedy of taxpayers for disproportionate assessments (n.) 194 Equalization to be made, how; limit and extent of method (sec. 37 (7)) 194 Method of making equalization (n.) 194 What properties may be equalized (sec. 37 (9)) 195 Record to be kept and certiiied to count}' court clerks to be en- tered on tax books (sec. 37 (8)) 195 Action of board is rinal (sec. 37 (10)) 195 Remed}'- by bill in chancery against the void action of the State board of equalizers in the assessment of taxes (n. 1) 195 State board of equalizers is a quasi court of record, and its ac- tion cannot be collaterally attacked, except where void for fraud or want of jurisdiction (n. 2) 196 But for irregularity in failure to hear evidence, the remedy is by certiorari in a court of law (n. 3) 196 To hear appeals from back assessments or reassessments made by county trustees and county court clerks; appeals to be per- fected and heard, when (sec. 37 (11)) 196 Certificate of record of action (sec. 37 (12)) 197 To report to legislature (sec. 37 (13)) 197 Evidence gathered from counties (sec. 37 (14)) 197 County boards to observe rules and regulations prescribed by State board (sec. Z7 (14a)) 197 Neglect of officials to be certified; penalties sued for; misde- meanors prosecuted (sec. 37 (15)) 197 To certify escaped property (sec. 37 (16)) 198 Expenses to be paid, how (sec. 37 (17)) 198 Provisos; notice before change as a whole of county assess- ments; reasons for decision in writing: evidence (sec. 37 (18)V 198 422 Index. Assessments of a county not to be changed as a whole upon a per cent, basis (n. 1) 199 Power is not exhausted by return of assessment roll, when (n. 3) 200 See Board of Equalization. See County Board of Equalizers. STATE REVENUE AGENTS. To institute proceedings to recover penalties under the general assessment law (sec. 33a). 189 Misdemeanor not to observe the general assessment law (sec. 35) 189 Motion or suit for State liistituted by (sec. 71c (2)) 241 To collect, report, and account for fees of State's counsel (sec. 71g (6)) 242 To collect, report, and account for fees of county's counsel (sec. 71h (7)) 242 To prosecute pending suits under direction of comptroller (sec. 74e) 246 Compensation to be fixed; State, counties, and cities are not liable for costs, fees, and charges (sec. 74f) 246 Appointment; term; bond; oath (sec. 11) 251 Information to be furnished by comptroller (sec. 77a) 251 Duties under direction of comptroller (sec. 77b) 251 Duties independent of comptroller (sec. 77c) 252 Reports of investigations (sec. 77d) 252 Powers in making investigations (sec. 11 €) 252 May institute suits or motions against delinquent collectors; and for what other dues (sec. 77f) 252 Statute is unconstitutional to extent it authorizes suits by the State revenue agents for moneys or funds belonging to indi- viduals; construction of statute (n.) 253 May sue delinquent privilege taxpayers (sec. 11 z) 254 To sue for certain penalties (sec. 77h) 254 Examination of reports of merchants (sec. 77i) 254 May demand distress warrants, when (sec. 77j) 254 But distress warrants not to issue without notice and assessment by clerk (sec. 77k) 254 Power to investigate and sue for any claims of State or county (sec. 771) 255 Their compensation and that of assistant attorneys (sec. 77m). . 255 To report and remit (sec. 77n) 255 Misdemeanor to refuse them access to books and records; fine (sec. 77o) 255 To obtain allowance for taxes in pending suits (sec. 77p) 255 To sue for taxes payable directly to the comptroller (77q) 256 To be assisted by attorney-general and district attorneys (sec. 77r) 256 Index. 423 Penalties to be added to cover compensation and expenses (sec. 77s) 256 Compensation to be paid out of fees; salary limited to $2,500; and remainder to go into State treasury (sec. 77t) 256 Expenses allowed out of fees in addition to salary (sec. 77u) .... 257 Assistant attorneys employed by consent of comptroller shall be paid out of fees only (sec. 77w) ? 257 To examine and report as to all State institutions (sec. 77w) . . . . 257 Penalty for failure to comply with section 74 to be deducted from salar}^ (sec. 77:^) 257 Comptroller to publish in his biennial report a detailed state- ment as to delinquent revenues collected, and as to revenue agents and their operations (sec. 77y) 257 Delinquent revenue not to be paid to revenue agents, but to county court clerk and county trustee; but revenue agents may collect from delinquent or defaulting officials (sec. 77z) 258 STATE TAX ASSESSORS. Railroad commissioners perform the duties (sees, la-lf, n.)..265, 266 See Assessment of Railroad, Telegraph, and Telephone Properties for Taxes, and Collection Thereof. See Assezsment of Railway Cars of Nonresidents Used Within This State fcr Taxes, and Collection Thereof. See Assessment of Interurban Railroad and Street Railroad Proper- ties for Taxes, and Collection Thereof. STATE TREASURER. Building and loan association taxes payable to (sec. 7) 76 STATUTES OF LIMITATIONS. Of live years against suits for inheritance tax (sec. 19) 110 As to back assessments of property (sec. 815) 170 This statute is not one of limitation of actions, but is restrictive of power (n. 6). 172 Taxes barred after six years (sec. 821) 176 Duty of court when statute is pleaded and sustained (sec. 822). . 176 City taxes were not barred before statute (n.) 176 A<;ainst taxes (n. 1) 200 Against back assessments or reassessments (n. 2) 201 .^ gainst suit to invalidate tax title; disabilities excepted (sec. . 64d) 229 STOCK YARDS, ETC. Privilege taxes against (sec. 4) 63 STORAGE AND WAREHOUSE COMPANIES. Privilege tax against (sec. 5) 73 424 Index. STREET CARS AND DUMMY RAILROADS. Privilege taxes against (sec. 4) 63 STREET RAILROADS. See Assessment of Interurban Railroad and Street Railroad Prop- erties for Taxes, and Collection Thereof. SUBROGATION. See Purchaser at Void Tax Sale. TABLES. See Carlisle Life Tables. See Annuities. See Present Value. TAX AGGREGATES. For comptroller and mayor to be furnished by county court clerk (sec. 43) 205 TAX ASSESSORS. Term of present assessors to continue until when (sec. 9, sub- sec. 1) 123 Vacancies filled, how (sec. 9, subsec. 2) 123 County assessors; district assessors abolished, when (sec. 9, sub- sec. 3) 124 Members of county court are not eligible (sec. 9, subsec. 4) 124 Compensation to be paid by counties (sec. 9, subsec. 5) 124 Commission does not invalidate assessment (n.) 125 To deduct the $1,000 exemption of personalty (sec. 9, subsec. 5a) 125 May appoint deputies, when; their oath, compensation, duties, and liabilities (sec. 9, subsec. 6) 125 Affidavit as to deputies and compensation (sec. 9, subsec. 6a) .... 125 Bond (sec. 10) 126 Oath (sec. 10a) 126 ' Oath of deputy (sec. 10b) 127 Oath to assessment list (sec. 10c) 127 Oath of deputy upon completion of his work (sec. lOd) 128 Unlawful not to take prescribed oaths (sec. lOe) 128 Whose duty to report failure to take oaths (sec. lOf) 128 Duty in making assessments (sec. lOg) 128 To report list of taxpayers not taking oath nor returning sched- ules (sec. lOh) 128 List to be made, when; unlawful not to make; district attorney to prosecute persons listed (sec. lOi) 129 To add up all columns before returning books to clerk (sec. 11). 130 New bonds, when; failure creates, vacancy; acting without bond is unlawful (sec. 11a) 130 Penalties for failure in performance of duties (sec. 33) 188 Index. 425 Xo compensation until duties are performed (sec. 34) 189 Neglect to be certiiied by State board of equalization; penalties to be sued for; misdemeanors prosecuted (sec. 37 (15)) 197 To return names of persons exercising privileges (sec. 45) 206 TAX BOOKS. To be made out by county court clerk and deli-vered to county trustee, when; compensation (sec. 39) . . , . : 201 To be made out, how (sec. 39a) 201 To be made to show municipal taxes (sec. 40) . 202 TAX DEED. Must show tax sale at time anid place required by law (n.) ...... 215 To be made after time of redemption; clerk's fee (sec. 62a) 225 To be entered by county court clerk, and indorsement to be made thereon before registration; clerk's fee (sec. 62b) 225 Form of deed (sec. 62c) 226 Prima facie evidence of statements (sec. 62d) 226 Recitals are prima facie evidence only, and may be contradicted, when (n.) 226 Seal is authentication for registration (sees. 62e, 64b) 226, 229 To be made in lieu of back tax attorney's certificate under Acts of 1895 (sec. 63) 227 To purchaser to be made by clerk of circuit court after time for redemption has expired; clerk's fee (sec. 64) 228 Form of deed (sec. 64a) 228 Assurance of perfect title, not to be invalidated, except for what (sec. 64c) 229 Notice by clerk before making deed; cost thereof; clerk's fee; what to be paid by purchaser (sec. 64g) 230 Form of notice or publication (sec. 64h) 231 Notice may be served by whom (sec. 64i) 231 Form of public notice substantially complied with; one number; expense prorated (sec. 64j) 231 TAX SALES. See Sale of Land for Taxes. TAXATION. Rate for State, county, and municipalities (sees. 1,2) 7 Privileges taxes (sees. 4-10) 18-81 Property subject to (sec. 1) 113 Property exempt from (sec. 2) 1 13-1 17 TAXES. Payable, when; cities excepted; delinquent city taxes (sec. 41). . . 203 Trustee to give receipt; provisions as to receipts (sec. 42) ....... 204 426 Indkx. Due and payable to county trustee, and delinquent, when; inter- est and penalty; municipal and poll taxes (sec. 48) 208 Penalties may be imposed for the nonpayment of taxes (n. 1). . . 209 Penalty for nonpayment of taxes by life tenant does not attach to remainder estate (n. 2) 209 Distress warrants after March 1, and have force of executions from judgments (sec. 49) 209 Statutes authorizing distress warrants are valid as " the law of the land," and as authorizing ** due process of law " (n.) 209 May be paid by part owner on his portion of the property (sees. 67-67b, n.) 236 TAXING POWER. Delegation to counties and cities (n, 1) 8 What is a county purpose determined by the courts (n. 2) 8 Not judicial, but legislative (ns. 3, 4) 8, 9 TELEGRAPH COMPANIES. Privilege taxes against (sec. 5) • 73 Telegraph is subject to interstate regulations (n. 1) 73 Liability for ad valorem tax (n. 2) 74 License tax imposed generally on telegraph companies is void as against those doing interstate business (n. 3) 74 License fee may be required of telegraph company when con- fined to business within the State, when (n. 4) 74 Statute taxes for messages within the State alone (n. 5) 74 See Assessment of Railroad, Telegraph, and Telephone Properties for Taxes, and Collection Thereof. TELEPHONE COMPANIES. Privilege taxes against (sec. 5) 74 See Assessment of Railroad, Telegraph, and Telephone Properties for Taxes, and Collection Thereof. TENANTS. In possession become tenants of purchasers without liability for rents, when (sees. 52, 54d, 57a, and 65c) 216, 219, 222, 232 TENANTS IN COMMON. Payment of taxes on each owner's portion (sees. 67-67b, n.) 236 TENPIN ALLEYS. See Games. THEATERS. Privilege tax against dealers in theater tickets (sec. 4) 32 Privilege taxes against (sec. 4) 63 Index. 427 If owners or lessees of theaters are licensed, companies hired to furnish entertainments need not be (n, 1) 64 Theatrical entertainments include negro minstrel performances (n. 2) 64 TIMBER. Interest in land to be assessed to the owner thereof (sec. 5, sub- sec. 5) 1 19 TOWNS. Word " town " defined (sec. 15) 84 TRADING STAMPS. Privilege taxes against sale or use of (sec. 5) 74 TRANSCRIPTS. No fee for imperfect (sec. 6395) 305 Costs of, to be paid as heretofore (sec. 7622a (3)) 318, 319 Fee for (sec. 6388 (37)) 339 Clerk must be paid for supplying lost transcript (n. 1) 339 Fees and costs forfeited on account of bad transcript (n. 2) 339 TRANSFER BUSINESS FOR HIRE. Privilege tax against (sec. 4) 65 Hauling must be done as a business to make one subject to the tax (n. 1) 65 Owner not liable for privilege exercised by hirer (n. 2) 65 TRANSF'ERS OF LAND. Taxed, and rate thereof (sec. 8) 78 Single tax on one tract (Code, sec. 968) 78 Tax on, is not a privilege, but a specific tax; county levy for same (n. 1) 78 Purchaser to pay tax on (n. 2) 78 Deeds or contracts for standing timber are subject to the tax on (n. 3) 78 Court deeds conveying land subject to tax on (n. 4) 79 Partition deeds are subject to tax on (n. 5) 79 Parties are estopped to show less consideration than that stated. in the deed (n. 6) 79 Clerk may determine consideration to be greater than that stated, when (n. 7) 79 No fee for certificate (n. 8) 79 Tax is not collectible on deeds to government (n. 9) 80 TRUSTEES. To be assessed for taxes where (sec. 5, subsec. 3) 118 Failure to return schedule to be reported to county judge or 428 Index. chairman; his power to cite and examine party, and make as- sessment (sec. 17) 137 See County Trustee. TRUSTEE FOR CREDITORS. Selling stock of goods assigned is not a merchant (n. 3) 156 TURNPIKES. Privilege taxes against (sec. 4) 65 Privilege tax on turnpikes collecting " tolls both ways " is con- stitutional (n. 1) 66 UNDERTAKERS. Privilege taxes against (sec. 4) 66 A merchant is not an " undertaker," when (n.) 66 UNITED STATES. Transfer tax on conveyances of land is not collectible on deeds to government (n. 9) 80 Bonds are not exempt from the inheritance tax (n. 5) 93 VALUATION. Basis for assessment is the actual cash value (n. 1) 120 VARIETY THEATERS. Privilege tax against 66 WAREHOUSES AND ELEVATORS. Privilege taxes against (sec. 4) 66 WAREROOMS FOR STORAGE OF FURNITURE, ETC. Privilege taxes against (sec. 4) 67 WATER COMPANIES. Privilege taxes against (sec. 4) 67 Exemption of municipal corporations from this tax is valid (n.). 68 WILD WEST SHOWS. Privilege taxes against (sec. 4) 35 WINE. See Liquor Dealers. WITNESSES. To be examined by tax assessor as to property of others, when (sec. 12, subsecs. 2b and 2c) 131 Falsely swearing to statement is perjury (sec. 12a) 131 Refusing to take oath or make answer is guilty of misdemeanor; fine (sec. 12b) 131 Index. 429 Statements to be written and filed (sec. 12c) 131 Back assessing or reassessing officials have power to summon, swear, and examine witnesses (sec. 30 (5b)) 168 Amenable to law for nonattendance and failure to give evidence (sec. 30 (5c)) " 168 County board of equalizers may examine witnesses and papers, obtain evidence, and administer oaths; perjury of witnesses (sec. 32h) 181 May be examined by railroad commissioners as to assessment values of railroads, telegraphs, and telephones (sec. 5) 268 Perjury to testify' falsely (sec. 5a) 269 Failure to attend is a misdemeanor (sec. 5a) 269 May be examined as to assessment value of interurban and street railroads (sec. 6a) 285 Perjury to testify falsely in reference thereto (sec. 6b) 286 Misdemeanor to fail to attend; fine and imprisonment (sec. 6c). . 286 Prosecutor in misdemeanor cases is not entitled to witness fees (sec. 7600) • 309 Costs for attachment in criminal cases (n. 1) 311 To be paid as heretofore in certain cases (sec. 7622a (3)). . . .318, 319 Living within five miles entitled to no fee (sec. 7622a, n. 4; sec. 7622b) 318-320 Statute is constitutional (n. 1) 321 Attendance and mileage when residing beyond the limits of the State (n. 6) ■ 320 County pays witness fees on ignored indictment (n. 1) 323 Per diem, mileage, tolls, and ferriage (sec. 5617) 349 Attendance in another county (sec. 5618) . 350 Before a justice (sec. 5619) 350 When probate of attendance is taken (sec. 5621) 350 Not legally subpoenaed (n. "t ) 350 Presumption of subpoena from attendance (n. 2) 351 Must elect in which case he will have mileage and ferriage (sec. 3) 351 Attendance proven, though compelled to attend court for other business (n. 4) 351 But one attendance, though summoned by both parties (n. 5) . . . . 351 In criminal as in civil cases (sec. 7366) 351 Before grand jury (sec. 7367) 351 Judgment against State for costs on ignored indictment reviewed by appeal or writ of error only (n. 1) 351 County, and not State, is liable for witness fees on ignored in- dictment (n. 2) 352 Attendance in not more than two criminal cases (sec. 7368) 352 Statute enforced (n. 1) 352 Attendance in one case only before statute (n. 2) 352 Probate of attendance (sec. 7369) 352 430 Index. Statute enforced (n.) 352 Attendance for what days (sec. 7640) 352 Issuance of subpcena must be directed by district attorney (sec. 7641) 353 Certificate of attendance not to be made, unless subpoenaed un- der such direction (sec. 7642) 353 No warrant unless so certified (sec, 7643) 353 Attendance before grand jury for one day, when (sec. 7648) 353 Number allowed before justices and recorders (sec. 7649) 353 WRITS OF POSSESSION. To put State in possession of land bought in for inheritance tax (sec. 14b) 105 To gain possession of land sold for taxes (sec. 54d) 219 Awarded to purchasers of land at tax sales (sec. 57a) 222 Awarded by decrees on former sales (sec. 57b) 222 But not to be issued except under order of court (sec. 57c) 222 Provision applicable to all sales made and to be made (sec. 57d). 223 Authority vested in circuit courts to order (sec. 57e) 223 To be ordered, when (sec. 62g) 227 To be issued to purchaser at tax sale (sec. 64f) 230 To be issued upon order of court, when (sec. 65) 232 Notice of application for (sec. 65a) 232 Notice served by whom and. in what manner (sec. 65b) 232 YC 35610 ivil44255 A3 130-7 THE UNIVERSITY OF CALIFORNIA UBRARY