Meriwether v. Garrett, 102 U.S. 472 (1880)
U.S. Supreme CourtMeriwether v. Garrett, 102 U.S. 472 (1880)
Meriwether v. Garrett
102 U.S. 472
Upon consideration of the legislation of Tennessee, being chapter 10 of acts of 1879, entitled "An Act to repeal the charters of certain municipal corporations, and to remand the territory and inhabitants thereof to the government of the state," approved Jan. 30, 1879; chapter 11, entitled "A Bill to establish taxing districts in this state, and to provide the means of local government for the same," approved Jan. 30, 1879; and chapter 92, entitled
"An Act to collect and dispose of the taxes assessed for municipal corporations in this state whose charters have been or may be repealed, or which may surrender their charters, and to provide for the compromise and make settlement of the debts of such distinct municipal corporations, respectively,"
approved March 14, 1879 (infra, pp. 102 U. S. 477, 102 U. S. 479, 102 U. S. 490), the Court holds:
1. Property held by the City of Memphis for public uses, such as public buildings, streets, squares, parks, promenades, wharves, landing places, fire engines, hose and hose carriages, engine houses, engineering instruments, and generally all things held for governmental purposes, cannot be subjected to the payment of its debts. Upon the repeal of its charter, such property passed under the immediate control of the state, the power once delegated to the city in that behalf having been withdrawn.
2. The private property of individuals within the limits of the territory of the city cannot be subjected to the payment of the debts of the city except through taxation.
3. The power of taxation is legislative, and cannot be exercised otherwise than under the authority of the legislature.
4. Taxes levied according to law before the repeal of the charter, other than such as were levied in obedience to the special requirement of contracts entered into under the authority of law, and such as were levied under judicial direction for the payment of judgments recovered against the city, cannot be collected through the instrumentality of a court of chancery at the instance of the creditors of the city. Such taxes can only be collected under
authority from the legislature. If no such authority exists, the remedy is
by appeal to the legislature, which alone can grant relief. Whether taxes levied in obedience to contract obligations or under judicial direction can be collected through a receiver appointed by a court of chancery, if there be no public officer charged with authority from the legislature to perform that duty, is not decided, as the case does not require it.
5. The receiver and bank tax collector appointed under the authority of the Act of March 13, 1819, is a public officer, clothed with authority from the legislature for the collection of the taxes levied before the repeal of the charter. The funds collected by him from taxes levied under judicial direction cannot be appropriated to any other uses than those for which they were raised. He, as well as any other agent of the state charged with the duty of their collection, can be compelled by appropriate judicial orders to proceed with the collection of such taxes by sale of property or by suit, or in any other way authorized by law, and to apply the proceeds upon the judgments.
6. The bills in this case, not having been framed with a view to any such purpose, cannot be amended so as to obtain relief against such receiver and back tax collector.
On Feb. 28, 1879, Robert Garrett and others filed their bill in the court below against the City of Memphis, Tennessee, setting forth that they are the owners and holders of overdue and unpaid bonds and coupons and other evidences of her indebtedness to the amount of more than $100,000, upon much of which indebtedness they have secured judgments and writs of mandamus to compel the collection thereof, but that, owing to the malfeasance, misfeasance, and incompetency of her officers charged with the collection of taxes, a large proportion of those assessed and levied for many years past, and amounting to at least $2,500,000, are uncollected and unpaid, by reason of which she is insolvent; that her persistent failure to collect them is a fraud upon her creditors; that during each of the years 1875, 1876, 1877, and 1878 a large levy of taxes was made in obedience to writs of mandamus, but that by reason of her failure during each of those years to collect more than three-fifths of the amount thereof, and also of the taxes assessed and levied for general purposes, a large amount represented by the judgments remains unpaid; that the special levies so made, in which the complainants have a large interest, constitute a trust fund for the payment of their judgments which can only be used for that purpose, and that the
city's neglect and failure to press the collection thereof is a fraud upon them, against which a court of equity will relieve; that outside of the power of a court to appoint a receiver to take charge of the assets of the city and collect the taxes so levied, it is, by an act of the Legislature of Tennessee passed March 19, 1877, entitled "An Act to enable municipal corporations having more than thirty-five thousand inhabitants to settle their indebtedness," being chapter 71 of the acts of 1877, provided that upon the application of any person or persons who are the holders of any past due and unpaid bonds, coupons, or other indebtedness, not less in amount than $100,000, of any municipal corporation having more than thirty-five thousand inhabitants, it shall be the duty of the Court of Chancery to appoint a receiver for such corporation; that the city's indebtedness, represented by judgments and otherwise, amounts to over $850,000, and that her population exceeds thirty-five thousand persons. They therefore pray that a receiver be appointed to take charge of her assets, including her tax books and bills for past due and imposed taxes, and that he be clothed with the power conferred by said act of March 19, 1877, and such other power as may be necessary to enable him to collect all outstanding indebtedness and claims of every kind due to her, and to settle her debts, particularly those due to the complainants.
Chapter 71 of acts of 1877 enacts as follows:
"SEC. 2. That the power to levy taxes of every description, and for any and every purpose whatever, is hereby taken away from said municipal corporations, and each and every officer and representative thereof, and said taxing power lodged in the legislature of the state, and not elsewhere; and that by virtue of article 11, section 9, of the constitution of the state, in addition to the powers already conferred, the chancery court, for the purpose of settling the indebtedness of Memphis and other municipal corporations containing more than thirty-five thousand inhabitants, may appoint a receiver, and exercise such other powers as are hereinafter set forth."
"SEC. 3. That upon the application of any person or persons, who are the holders and owners of any past due and unpaid bonds, coupons, or other indebtedness of said municipal corporations, not
less in amount than one hundred thousand dollars, it shall be the duty of the chancery court to appoint a receiver for said municipal corporations, who, as the officer of the court, and not otherwise, shall, under the order and instruction of the court, act for such municipal corporations."
"SEC. 4. That said receiver, together with two other citizens and property holders of said corporation, to be appointed by the court, shall constitute a commission to settle and compromise the indebtedness of said municipal corporation, by funding the same, at a rate not exceeding fifty-five cents in the dollar on judgments, and not exceeding fifty cents in the dollar for bonds or coupons past due, and at a less rate for the less valuable class of said indebtedness; and upon their action being confirmed by the court, the court shall direct the receiver to execute the necessary and proper compromise bonds and contracts, which bonds, when so executed, shall to all intents and purposes be the valid and binding obligations of said corporation; but it is understood and agreed that the holders of any of the bonds issued by the receiver as provided in this act shall have the option, after two years, to fund or exchange them at par, into bonds payable thirty years after the date of their issue, and bearing interest at the rate of six percent per annum; said bonds shall be of the denomination of one thousand dollars each, and numbered consecutively from one to twenty five hundred; the total amount of bonds issued under this act shall not exceed two and one half millions of dollars."
"SEC. 5. That in order to enable said commission to make a settlement of said municipal indebtedness, as contemplated, it is hereby enacted:"
"1. That all bonds and matured coupons and judgments, and all paving scrip certificates issued by said corporation, and all receipts for money paid by taxpayers to paving contractors for making Nicholson and stone pavement, &c., by virtue of any contracts with said corporation, may be funded at such a rate not exceeding the maximum above mentioned, and into such bonds, bearing not exceeding six percent per annum interest, as may be agreed on between the parties, the holder, and said commission."
"2. That all matured bonds and coupons, issued by virtue of any agreement made in pursuance of this act, shall be receivable for taxes, city dues, and indebtedness of every kind."
"3. That said municipal corporations are hereby prohibited from issuing scrip at any time, or bonds, while any bonds issued under
this act are outstanding, except such as may be issued in exchange, as hereinbefore provided in section 4 of this act."
"4. That, hereafter, for said municipal corporations, there shall not be levied a higher rate of taxation for general purposes, as defined in the charter, than one percent for the next five years, and at no time thereafter for said purposes a tax exceeding one dollar and twenty five cents on the hundred dollars."
"5. That an ample interest and sinking fund tax shall be levied annually, and collected, to meet the maturing interest and retire and pay the bonds issued under this act, and that this tax shall be faithfully applied to the object proposed. The sinking fund tax shall be paid into the hands of three sinking fund commissioners, and the interest tax shall be paid into the hands of three interest commissioners; each and all of said sinking fund and interest commissioners shall be appointed by the court, and shall be citizens of established integrity and responsibility, who shall give bond in sufficient amounts to cover the funds coming into their hands and take an oath to faithfully execute their trusts; said bonds to be fixed by the court."
"6. That the provisions of this act may be made a part of the contract with the holders of any bond or coupon issued by reason of any agreement made under this act."
"7. That so much of secs. 38, 63, 64, and 66 of an act passed March 20, 1875, and all other acts as are in conflict with the provisions of this act, are hereby expressly repealed."
"SEC. 6. That the court shall appoint the interest and sinking fund commissioners, and supply all official vacancies as they may occur in the different municipal departments, which, as to the ordinances affecting the same and in every other respect, remain unaffected, except in so far as they may conflict with the enforcement of the provisions of this act, in which event the court will so order as to carry out the true intent and purposes of this act: provided, however, that all the offices not abolished by this act be filled by a popular vote, for the term of two years, at the time designated in the charter for the next regular municipal election."
"SEC. 7. That to carry into effect the true intent and provisions of this act, the legislature of the state hereby levies an annual tax of one dollar and sixty cents on each one hundred dollars' worth of taxable property and values within said municipal corporation (including the school tax, which shall not exceed ten cents), to be applied under the order and directions of the court in the payment of current expenses, interest on compromise bonds,
and the extinguishment of the indebtedness of said municipal corporations."
"SEC. 8. That this act shall take effect, and not before, when the sum of the tax mandamuses outstanding against any one of said municipal corporations shall amount in the aggregate to the sum of ($850,000) eight hundred and fifty thousand dollars."
"Passed March 19, 1877. Approved March 23, 1877."
On the day next after that upon which the complainants' bill was filed, the Legislature of Tennessee passed the following acts:
"CHAPTER 10, OF ACTS OF 1879"
"An Act to repeal the Charters of certain Municipal Corporations, and to remand the Territory and Inhabitants thereof to the Government of the State."
"SEC. 1. Be it enacted by the General Assembly of the State of Tennessee, that an Act passed Dec. 1, 1869, entitled 'An Act to reduce the charter of the City of Memphis and the several acts amendatory thereof into one act,' being chapter 26 of the private acts of 1869 and 1870, also chapter 47, to the public acts of 1873, entitled 'An Act to amend the charters of all incorporated towns and cities in the state,' passed March 18, 1873; also, an act entitled 'An Act to incorporate the town of Memphis,' passed Dec. 9, 1826; also, an act entitled 'An Act to extend the limits of the corporation of the town of Memphis, and for other purposes,' passed Oct. 19, 1832; also, an act entitled 'An Act to amend the several acts incorporating the town of Memphis,' passed Dec. 7, 1843; also, an act entitled 'An Act to reduce the several acts incorporating the town of Memphis into one act, and to amend the same,' passed Jan. 11, 1848; also, an act entitled 'An Act to incorporate into one act the several acts incorporating the City of Memphis and the Town of South Memphis,' passed Jan. 6, 1846, and Jan. 21, 1848, and to 'unite the said towns into one, and extend the boundaries thereof,' passed Dec. 3, 1849; also, the section of an act entitled 'An Act to amend an act entitled An Act to incorporate the town of Tazwell,' passed Jan. 2, 1830, passed Jan. 28, 1852; also, an act entitled 'An Act to amend the charter of the City of Memphis,' passed Feb. 29, 1856; also, an act entitled 'An Act to amend the charter of the City of Memphis, and for other purposes,' passed Feb. 20, 1860; also, an act entitled 'An Act to amend the charter of the City of Memphis,' passed Nov. 24, 1866; also, an act passed in amendment
of the foregoing acts, and also any other acts creating into a body politic and corporate the inhabitants of a certain territory lying within the County of Shelby, by the name of the City of Memphis, the Mayor and Aldermen of Memphis, or other corporate name whatever, or acts amending the said acts of incorporations be, and the same are hereby, each and every one of them, repealed, and all offices created and held under and by virtue of any of said acts are abolished."
"SEC. 2. That the charters and amendments thereof of all municipal corporations within the state, having a population of thirty-five thousand inhabitants or over, by the federal census of 1870, be, and the same are hereby, repealed, and all municipal offices held under them are abolished."
"SEC. 3. That the charters and amendments thereof of all municipal corporations within this state having thirty-five thousand inhabitants or over, at the date of the passage of this act be, and the same are hereby, repealed, and all municipal offices held thereunder are abolished. The governor of the state will ascertain and declare, by proclamation, to what corporations this section applies; said proclamation shall be conclusive evidence of its truth, and shall be made within ten days from the passage of this act."
"SEC. 4. That all of the sections, from section 33 to section 80, both inclusive, of an act entitled 'An Act to regulate and organize municipal corporations of certain population, and for the increase and diminution of their powers,' chapter 92, approved 23d March, 1875, and all other acts and parts of acts in conflict with this act, be, and the same are hereby, repealed; all the other sections of said chapter 92, and especially section 81 of said chapter, being left in full force; and the population within the territorial limits as now defined, and the territory of all municipal corporations heretofore governed under and by virtue of said repealed sections 33 to 80, inclusive, are hereby resolved back into the body of the state, and all offices held under and by virtue of said repealed sections are hereby abolished; and all power of taxation, in any form whatever, heretofore vested in or exercised by the authorities of said municipal corporations by virtue of any of the acts of incorporation hereinbefore recited, or otherwise, is forever withdrawn and reserved to the legislature; and the public buildings, squares, promenades, wharves, streets, alleys, parks, fire engines, hose and carriages, horses and wagons, engine houses, engineer instruments, and all other property, real and personal, hitherto used by such corporations for municipal purposes, are hereby transferred to the custody and control
of the state, to remain public property, as it has always been, for the uses to which said property has been hitherto applied. And no person holding office under and by virtue of any of said repealed sections, or any of the acts above recited, shall, from and after the passage of this act, exercise or attempt to exercise any of the powers of functions of said office."
"SEC. 5. That this act take effect from and after its passage, the public welfare requiring it."
"Passed Jan. 29, 1879. Approved Jan. 31, 1879."
"CHAPTER 11, Acts of 1879"
"A Bill to establish Taxing Districts in this state, and to"
"provide the Means of Local Government for the same"
"SEC. 1. That the several communities embraced in the territorial limits of all such municipal corporations in this state as have had or may have their charters abolished, or as may surrender the same under the provisions of this act, are hereby created taxing districts, in order to provide the means of local government for the peace, safety, and general welfare of such districts."
"SEC. 2. That the necessary taxes for the support of the governments thus established shall be imposed directly by the General Assembly of the State of Tennessee, and not otherwise. In administering the affairs, and for providing the means of local government in said districts, the following agencies and governing instrumentalities are hereby established:"
"1st, A board of fire and police commissioners, to be selected and qualified in the manner hereafter provided."
"2d, A committee on ordinances or local laws, to be known as the 'Legislative Council of the Taxing District,' and which shall consist of the commissioners of the fire and police board, and the supervisors of the board of public works."
"3d, A board of health, to consist of the chief of police, a health officer, and one physician who shall have been in active practice for the period of five years next preceding his appointment, who shall be an inhabitant of the taxing district, and for five years a resident of the county, and who shall be ex officio president of the board."
"4th, A board of public works, to consist of five supervisors of public works, three of whom shall be chosen by the qualified voters of the people of the taxing district, and two appointed as hereinafter provided, and shall serve for a term of two years."
"* * * *"
"SEC. 11. That the diversion of any portion of any of said taxes, or wharfage dues, or other funds, from the purpose for which they were levied, by any of the commissioners, or by the trustee, shall be a felony, for which the guilty party upon conviction shall suffer imprisonment in the Penitentiary at hard labor for two years."
"SEC. 12. That said commissioners shall not issue any bonds, notes, script, or other evidences of indebtedness, and shall in no event contract for work, or material, or services, in excess of the amount of tax levied for such work, material, or service for that year, and parties contracting with said commissioners for work, material, or services shall look alone to the tax for that purpose for that year, and no subsequent tax shall be levied to meet the deficit, and no property, real or personal, held by said commissioners for public use, shall ever be subject to execution or attachment, or seizure under any legal process, for any debt created by said commissioners, and all taxes due, or moneys in the hands of the county trustee, or on deposit, shall be exempt from seizure under attachment, execution, garnishment, or other legal process. And said commissioners and said trustee and other governing agencies employed by this act are expressly prohibited from levying any taxes for any purpose, that power being reserved to the legislature, and no writ of mandamus or other process shall lie to compel them to levy any taxes; nor shall the said commissioners or said trustee, nor the local government created by this act, pay or be liable for any debt created by said extinct corporation, nor shall any of the taxes collected under this act ever be used for the payment of any of said debts."
"* * * *"
"SEC. 14. That the fire engines, hose and carriages, horses and wagons, engine houses, public buildings, public squares, parks, promenades, wharves, streets, alleys, engineer instruments, and all other property, real and personal, hitherto used by such corporations for purposes of government, are hereby transferred to the custody and control of said board of commissioners, to remain public property, as it has always been, for the uses to which said property has been hitherto applied, and that all indebtedness for taxes or otherwise, whether in litigation or otherwise, due to the said municipalities, shall vest in and become the property of the state, to be disposed for the settlement of the debts of said extinct municipalities as shall be hereafter provided by law, and all suits now pending shall be prosecuted to final determination under the provisions
of this act, without change of parties, and suits brought by said taxing districts shall be brought in the name of the president of fire and police commissioners; provided, however, that the taxes heretofore assessed as privilege taxes, and set apart for the payment of the police and firemen, shall be paid out as collected, under the provision of this act, to the said police and firemen."
"* * * *"
"SEC. 25. That this act shall take effect from and after its passage."
"Passed Jan. 29, 1879. Approved Jan. 31, 1879."
On February 7, the complainants, by leave of the court, filed an amended and supplemental bill, to which the City of Memphis, John R. Flippin, Mayor of the city, and W. J. Chase, W. Hewitt, James Elder, Simon Green, H. G. Dent, Marcus Jones, W. H. Brown, J. W. Moores, W. Benjes, George Haesinger, composing the Board of Aldermen of Memphis, James Bohan, D. T. Goodyear, W. P. Proudfit, Charles Quentel, Sen., J. H. Surdam, J. H. White, W. H. Bates, M. Selig, L. L. Lawhorn, P. O. Wood, Andrew Renkert, Herman Caro, Thomas Boyle, Peter Tracey, W. J. Crosbie, W. O. Harvey, Thomas Barrett, P. M. Patterson, L. D. Grant, William Bradford, composing the board of common councilmen of the city, altogether constituting the general council of the city, and as trustees and representatives of the corporators; also George B. Fleece, trustee of Shelby County, Tennessee, and ex officio tax collector of the city, the German National Bank of Memphis, J. W. Moores, former tax collector of the city, and Joseph Uhl, clerk of the Circuit Court of Shelby County, Tennessee, all residents and citizens of that county, were made defendants. The bill, after reaffirming the averments of the original bill, charges, among other things, that the complainants, as creditors of the corporation and having valid debts against it, are not and cannot be deprived of the vested rights secured to them by previous legislation; that said chapters 10 and 11 of the acts of 1879, so far as they attempt to impair those rights or divert the assets of the corporation from the reach or control of its creditors, are unconstitutional and void. The bill, after charging that upon the passage of said chapters 10 and 11 the mayor and other officers of the city who
were charged by law with the collection of taxes, and who held the same in trust to be applied in satisfaction of the complainants' debts, abandoned their offices and trusts and left the latter unexecuted; that before the repeal of the charter of the city, there was in the hands of certain of the defendants a large amount belonging to the special trust and mandamus funds; and that all the property of the city, real and personal, including past due and unpaid taxes, constitutes assets for the benefit of her creditors which should be brought in and marshaled for the payment of her debts -- prays that it may be taken and considered as a general creditor's bill for all who may come in within a time to be limited, and that a receiver be appointed and empowered and directed to take charge of all the tax books and papers of the city, and her records and books of every description, together with all the tax books, bills and accounts for all taxes theretofore levied by her for all purposes which have not been collected and are yet due and unpaid; that he be empowered to collect the same by distress warrants, or in any manner deemed expedient by the court, and bring or prosecute any suit or suits in any court for the collection of the same; that until the rights of all persons be determined, he be instructed and required to keep separate accounts of each class of taxes collected as appear on the various tax books of the city; that he be empowered to take charge of all money now on hand which has been collected from any source for taxes, rents, or otherwise; that all parties be required to pay the said funds to him, of which he shall keep separate accounts, and pay the same out to the parties entitled under the order of the court; that he be directed to take charge of all the real estate of the city of whatever description and wherever situated in which she has any interest, equitable or legal; that he take possession of all the personal property of every kind belonging to the city at the time of her dissolution, but that, for the time being and until the rights of parties shall have been determined and some arrangements be made, the fire engines, hose and horses, and paraphernalia of the fire department be not interfered with so as to destroy or impair its efficiency; that when the assets are collected they be disbursed under the order of the court to the parties to
whom they belong in law, or as the different parties are entitled; that he be empowered to sell any part of said assets from time to time, or all of the same, together with such further powers and instructions as may from time to time be necessary to bring other parties before the court; that if the present assets are not sufficient to pay all the debts, assessments be made upon all the corporators and property in the city for any claims that may remain unpaid of said debts, whether due or not, and that judgments be rendered against said parties for amounts found due; that such accounts be taken to ascertain the amounts of debts as may be deemed expedient, and complainants' debts paid.
Jan. 30, 1879, Hopkins Loudon filed his bill against the City of Memphis to recover money due for laying pavements. On February 6, he filed an amended bill, averring that since filing his original bill he had recovered a judgment for the amount of his claim.
Bills were filed by other judgment creditors of the city, as follows:
February 3, by the Ahrens Manufacturing Company against George B. Fleece, trustee of Shelby County, D. T. Goodyear, president of the common council and ex officio mayor, J. C. Neely, city treasurer, and James A. Newsom, city comptroller.
February 7, by Tallmadge E. Brown against the City of Memphis, John R. Flippin, its former mayor, Marcus Jones, the president of the board of aldermen, D. T. Goodyear, the chairman of the common council, James C. Neely, former city treasurer, the German National Bank, the First National Bank, the state National Bank, Joseph Uhl, clerk of the Circuit Court of Shelby County, George B. Fleece, county trustee of Shelby County, Benjamin F. Coleman, and James W. Moores, all citizens and residents of Shelby County.
February 10, by Fairman Rogers and others against the city, said Flippin, Jones, Goodyear, Neely, James A. Newsom, late comptroller, James H. Humphreys, late city engineer, Michael McFadden, late chief of the fire department, W. A. McCloy, late city register, James W. Moores, late back tax collector, Joseph Uhl, clerk of the Circuit Court of Shelby County, George B. Fleece, county trustee of Shelby County,
the German National Bank, the state National Bank, and the First National Bank, John F. Frank and D. T. Porter, W. W. Guy and John Overton, Jr., styled the board of fire and police commissioners of the Taxing District of Memphis, and against all other persons and corporations who have an interest in the subject matter of the suit and might make themselves parties thereto.
February 12, the court ordered that the several causes be consolidated, and appointed T. J. Latham receiver. The order directs that he
"first enter into a bond of the penal sum of fifty thousand dollars, with two or more securities, to be approved by the court, conditioned for the faithful performance of his duties as such receiver. He will also take an oath faithfully and impartially to discharge the duties of his said office. Such bond and oath shall be filed and remain of record in court here."
"After so qualifying, the said receiver will demand and receive and take possession of all the assets and property of the City of Memphis, including real and personal property and debts due to it, and taxes due and owing to it, except the taxes appearing on the tax books for the year 1878, for which special provision is herein made, and except also the public highways of the city, the public squares, the public landings and wharves, the engine houses, the fire engines, and the horses belonging to the fire department, the hose, the hose carriages, and the other property and appurtenances of the said department, the hospital, and the property and appurtenances belonging thereto or used in connection therewith, the horses, wagons, tools, and implements and other property used in connection with and necessary to the Engineers' Department of the City of Memphis, the property belonging to and used in connection with the police department of the city, and the taxes heretofore levied for the support of the public schools of the city; all which excepted articles and property are excluded from the operation of this order, and will not be taken possession of or interfered with by the said receiver until the further order of the court."
"The said receiver will also take possession of all the tax books of the City of Memphis whereon unpaid taxes due it are
charged, except the tax books for the year 1878, and the person or persons having the same in charge will at once, on his demand, surrender the same to him."
"He also will take possession and control of all the safes, books, papers, desks, office furniture, and other property belonging to the offices of mayor, comptroller, register, treasurer, tax collector, inspector, city attorney, necessary to the discharge of his duties as receiver, and of the buildings wherein the general council of the city has heretofore assembled, and the property in or belonging to such buildings not previously herein excepted from the operation of this order, and the large safe in the mayor's office, and will safely keep the same, subject to the order of the court herein; and the person or persons having possession or control of the said property, or any part thereof, are hereby required to surrender the same to him on demand."
"And the said receiver will, as soon as he can conveniently, make and file a full and true inventory of all the property of every description which may come to his control or possession as such receiver."
"The defendant, George B. Fleece, as county trustee of Shelby County, from time to time as he collects taxes levied by the City of Memphis for the year 1878, except taxes levied for the support of the public schools, will at once pay over the sums he collects to the said receiver, in the lawful money of the United States, taking his receipt therefor, which shall be a protection and discharge to him for the sums so paid. He will also at once, on the demand of the said receiver, pay to him all the moneys he has on hand collected for and on account of taxes levied by the City of Memphis for the year 1878, except sums collected on account of taxes levied for the support of the public schools, and will take his receipt therefor, which shall be a protection and discharge for the amount so paid."
"The defendant, James C. Neely, as former City Treasurer of the City of Memphis, and the German National Bank of Memphis, will at once, on the demand of the said receiver, turn over to him all the money in his hands or on deposit in the said bank received by him on the account of the City of Memphis,
except moneys received for taxes levied for the support of public schools, and take his receipt therefor, and such payment shall be a full acquittance and discharge for the sums so paid."
"The defendant, John R. Flippin, as late Mayor of the City of Memphis, will, on demand of the said receiver, pay over to him any money and deliver to him any property he has belonging to the said city, except the large safe in the mayor's office, and the papers and vouchers not necessary for the receiver in the discharge of his duties, and take his receipt therefor, which shall be a complete acquittance and discharge for the sum so paid and the property so delivered."
"The defendant, Joseph Uhl, as Clerk of the Circuit Court of Shelby County, will at once, on demand of the said receiver, pay over to him the money he has on hand received on the account of redemption of property sold for taxes due the said city, except such money as may have been received on account of taxes levied for the support of the public schools, and take his receipt therefor, which shall be an acquittance and discharge for the sum so paid, and he will hereafter from time to time, as he receives other moneys on the said account, pay over the same as aforesaid, with the exception aforesaid, to the said receiver, and take his receipt therefor, which shall be an acquittance and discharge for the sums so paid."
"The defendant James W. Moores will at once, on the demand of the said receiver, pay over to him any moneys in his hands received for or on account of taxes levied by the City of Memphis, except such sums as may have been received for taxes levied for the support of the public schools, and deliver him all the city tax books in his hands, and take his receipt therefor, which shall be an acquittance and discharge for the sums so paid and for the said tax."
"The said receiver will at once proceed to ascertain what property, real and personal, other than that hereinbefore specified or mentioned in the bills herein, the City of Memphis owns, including such as it has become the owner of by purchases at sales for non payment of taxes, and will take possession of such property where the possession is voluntarily surrendered, and report the same to the court, to the end that a proper disposition may be made thereof. "
"In the meantime, he is authorized to rent the property he may so obtain possession of from month to month, and to collect the rents, and hold the same subject to the order of the court. As soon as the said receiver is in possession of the funds already collected and on hand, and hereinbefore directed to be turned over to him, he will at once deposit the same in some solvent bank or banks in Memphis, to the credit of the clerk of this court, to be drawn out only by the order of this court, and report the same to the court, and in such report will show the amount received from each particular person on account of each particular tax, the year for which the same was levied, whether the tax on account of which the same has been paid was levied for the benefit of any particular person or persons or class of persons, and if so, who such person or persons or class of persons are, and the proportions in which they are or claim to be entitled to share such fund or funds, and the amount thereof to which each one is or claims to be entitled."
"And, from time to time, as he hereafter receives other moneys under this order or as such receiver, he will in the manner above directed deposit the same, and on the first and third Mondays of each month the said receiver shall make and file with the clerk a report, similar to that required above, of the funds that may have been paid over to him. The said receiver, as soon as he receives the tax books herein ordered to be delivered to him, will proceed in such manner as he may deem best to demand and collect all the unpaid taxes appearing on the said tax books, levied by and due to the City of Memphis, in the lawful money of the United States, and keep a proper account of such collections, showing therein the particular tax or taxes from which each sum is derived, and the year for which the same was levied and the purpose for which levied."
"If he finds it necessary, the said receiver may bring actions at law or suits in equity against any party or parties owing any debt due to the City of Memphis, or any tax or taxes appearing on the said tax books, for the recovery of the same, and in such actions or suits he may also proceed to enforce any specific lien or liens on any property, real or personal, for
the payment of such tax or taxes, and to have the same sold for the satisfaction thereof. He may also, in proper cases, employ the process of garnishment and all other proper process. He may bring the party or parties owing such tax or taxes by petition in this cause before this court, or he may sue at law in this court in proper cases."
"He may also, where he deems it best to do so, bring actions at law or suits in equity in the courts of the state, or make himself a party to any suit or suits already pending in such courts, where, by so doing, he may effect a collection of such tax or taxes, or any part thereof, and he is authorized to demand and receive and to receipt for all moneys heretofore collected, or which hereafter may be collected, on any judgment or decree heretofore rendered in favor of the City of Memphis, belonging to the said city, whether such judgment or decree is in this court or any other court of the United States, or any court of the State of Tennessee."
"He is hereby given authority to employ as many clerks and assistants as may be necessary to enable him to discharge the duties of his said office promptly and efficiently, who shall be paid a reasonable compensation out of the assets which may come to his hands, to be fixed hereafter by the court."
"The said receiver will make use of the building and offices formerly occupied for a city hall, and belonging to the City of Memphis, or such part thereof as may be necessary for his purposes, and will make use of such safes, desks, tables, chairs, and other furniture and property of the City of Memphis as he may have need of; but he will file in court here, as soon as he can conveniently make the same, a correct and full description and inventory of all the property he may use."
"The said receiver is hereby authorized to buy and pay for the necessary books and stationery, the necessary fuel and lights, and whatever else may be necessary property to fit his office or offices for use, and to enable him efficiently to discharge the duties imposed on him; but such expenditures shall always be subject to the control and approval or rejection of the court."
"The said receiver is also hereby authorized to insure any
property, real or personal, which may come to his hands as such receiver, where he deems it prudent to do so."
"The said receiver is also empowered to employ one or more attorneys, if necessary, to conduct the prosecution or defense of any suit or suits he may find it necessary to bring, prosecute, or defend, under the authority hereby conferred upon him. The compensation of such attorney or attorneys shall be fixed by the court hereafter, and shall be paid out of the assets which may come to the hands of the said receiver, in such manner as the court may direct."
"The several persons and corporations upon whom the process of garnishment have been served under the executions issued on the judgments of a portion of the plaintiffs in these suits, as appears by the bills herein, and who are parties hereto, are hereby directed to deliver or pay to the receiver herein appointed, on his demand as hereinbefore ordered, all the property, money, and effects in their hands or under their control, respectively, belonging to the City of Memphis, and upon their severally doing so they are hereby severally discharged as such garnishees."
"It is further ordered, that all persons having debts or claims of any character against the City of Memphis have leave to make themselves parties to these consolidated suits on or before the third Monday of May next, by severally filing petitions herein, setting forth their respective debts or claims, and that the clerk of this court at once give notice by publication in one of the daily morning papers published in Shelby County, for sixty days, that such persons are hereby required within the time aforesaid so to make themselves parties, and file their debts and claims."
By sec. 5 of chap. 84, acts of 1879, passed March 12, 1879, and approved March 13, 1879, sec. 14 of chap. 11 of the acts of that year was amended so as to read,
"That the fire engines, hose and carriages, horses and wagons, engine houses, public buildings, public grounds, parks, promenades, wharves, streets, alleys, engineer's instruments, and all other property, real and personal, hitherto used by such corporations for purposes of government, are hereby transferred to the custody and control of said board of commissioners, to remain public property,
as it has always been, for the uses to which said property has hitherto been applied, and that all indebtedness for taxes or otherwise, whether in litigation or otherwise, due to the said municipalities, shall vest in and become the property of the state, to be disposed of for the settlement of the debts of said extinct municipalities, as shall be hereafter provided by law, and suits brought by said taxing districts shall be brought in the name of the President of the Board of Fire and Police Commissioners."
On March 13, 1879, the legislature passed the following act:
"CHAPTER 92, OF ACTS OF 1879"
"An Act to collect and dispose of the Taxes assessed for Municipal Corporations in this state whose Charters have been or may be repealed, or which may surrender their Charters, and to provide for the Compromise and make Settlement of the Debts of such Extinct Municipal Corporations respectively."
"SEC. 1. Be it enacted by the General Assembly of the State of Tennessee, that as to municipal corporations in this state, whose charters may have been repealed at the time this act takes effect, and, from time to time, as the charters of other municipal corporations may be repealed or surrendered, the governor of the state shall appoint an officer for such extinct corporations respectively, to be known as a receiver and back tax collector, who shall take the oath required of other collectors of public revenue, and shall give bond with good sureties, to be approved by the county court of the county in which the extinct corporation was situated, in such sum as the county court may prescribe; and it shall be the duty of the quarterly court, at each quarterly term thereof, to see that the bondsmen continue good and adequate for the full protection of all persons interested, and for that purpose, from time to time, to require further and additional sureties whenever such court deems the same necessary for the protection of those interested."
"SEC. 2. That such receiver and back tax collector shall make to the chancery court every three months a full, clear, and complete statement, showing all taxes collected and settled, and all in his hands that remain to be collected and settled. He shall, at the end of each month, pay into the treasury of the state the whole sum by him collected, less his compensation. He shall distinguish, in making such payments, the respective sources from which the
moneys paid in are derived, showing what is collected from taxes for general purposes, and what for taxes for special purposes, designating the particular or special purpose, so that the same may be kept separate in the state treasury, in order that the treasurer may pay the same according to any lien, priority, or equity, if any, which may be declared by the chancery court touching any of said funds, in favor of any creditor or class of creditors."
"SEC. 3. That the back tax collector and receiver shall, as soon as appointed, enter upon the duties of his office. It shall be his duty, and he is hereby empowered, to take possession of all books, papers, and documents pertaining to the assessment and collection of the taxes embraced by this act."
"SEC. 4. That for the purpose of collecting the revenue embraced in the provisions of this act, the receiver and back tax collector is empowered and authorized to file a general creditors' bill in the name of the state in behalf of all creditors against all the delinquent taxpayers who owed taxes to the extinct corporation at the time of the repeal or surrender of its charter, which bill shall be filed in the chancery court of the county in which such extinct corporation was situated. All the said delinquents in any one county shall be embraced in one subpoena to answer, and for the same the clerk shall receive a fee of five cents for each defendant named in the subpoena except for the first, and for that, the fee allowed in other cases, provided he shall not receive exceeding twenty five dollars for such subpoena, and the sheriff, for serving the same, shall receive for each defendant ten cents, except the first, and for that, the fee allowed for like services in other cases. Publication for nonresidents shall embrace in the same publication, if practicable, all nonresident defendants -- the object being to make one proceeding embrace the whole taxes of such extinct corporation. All pending suits are to be received in the name of the state and consolidated with the general proceedings herein provided for, and when so consolidated, to form part of said general proceeding. The court in which said proceeding may be instituted shall have power to settle and adjust all equities, priorities, and liens, and to give all relief both to the defendants and the creditors that might be given if there were as many separate suits as there are creditors and delinquent taxpayers. Such court shall have power to enforce all liens upon property for the payment of such taxes, and to order and make all sales of property necessary to the collection of such taxes. The taxes embraced by this act and which it provides for are all taxes imposed by said extinct
municipalities up to the time of the repeal or surrender of their charter. The chancery court, in the exercise of the jurisdiction conferred by this act, shall have all the powers possessed by such courts in the administration of the estates of insolvent, natural, or corporate persons. If it shall appear that the taxes imposed in any case were excessive, the court shall have power to reduce the assessment so as to make it fair and just."
"SEC. 5. That back taxes imposed prior to the year 1875 may be settled in the valid indebtedness of such extinct municipalities, as provided by sec. 66 of an act passed March 20, 1875, entitled 'An Act to regulate and organize municipal corporations of certain population, and for the increase and diminution of their powers,' and, in addition to said act, as follows, to-wit, in valid bonds, whether due or not, and due coupons, and any other valid debt of such municipality with accrued interest, whether in the shape of scrip, warrants, judgments, ledger balances, paving certificates, or receipts for money paid by back taxpayers to paving contractors, or to the said corporation for Nicholson or stone paving done under former laws and ordinances authorizing front foot assessments for paving, and the back tax collector and receiver is hereby required to accept the same at the following rates, to-wit, bonds known as compromise or funded bonds shall be received at their face value, all other bonds, scrip, certificates of indebtedness, past due coupons, ledger balances, &c., shall be received at fifty cents on the dollar, or one half their face value, and all judgments shall be received at fifty-five cents on the dollar of their face value, provided compromise bonds issued in lieu of any bonds which have been pronounced invalid by the supreme court of this state shall be excluded so far as such invalid bonds shall compose a part or the whole of such compromise bonds, and compromise bonds issued in whole or in part in lieu of bonds liable by implication, on account of over issue or otherwise, to a similar decision of the supreme court, shall not be received, so far as they may be composed in whole or in part of such suspected bonds, until the validity of such suspected bonds shall be determined by the supreme court of the state, and the aforesaid bonds, coupons, scrip, &c., shall be received with interest added, if there be interest, in payment of taxes imposed prior to 1875, whether before or after judgment or decree against the delinquent taxpayers in satisfaction of such taxes, or by way of set off against taxes due such extinct municipalities, whether acquired before or after suit brought against a delinquent taxpayer. But before being required to accept the
same, such back tax collector and receiver may, if he chooses and if he suspect the debt not valid, or if any creditor gives him notice that it is not, then before taking it he shall, on motion in the general suit, have the question settled by the chancellor whether such indebtedness is valid or not, and it shall be the duty of such receiver and back tax collector to receive in payment of taxes imposed after 1874 any of the aforesaid valid indebtedness of the extinct municipality, when there is no lien or equity requiring the same to be paid in current money, and whenever any question may be raised as to the right of the taxpayer to pay taxes imposed after 1874 on the said indebtedness of the extinct municipality, the court shall determine the same on motion at the instance of the parties interested, provided, however, that in every case where a bond of any kind or character, whether it be a compromise bond or other kind of bond, is received or taken up before maturity, all immatured interest coupons shall be surrendered with it, and no bond of any kind shall in any case be received before maturity which has the interest coupons detached, and nothing shall be allowed such immature coupons. All evidences of indebtedness taken by said receiver in payment of taxes shall be cancelled by him, as soon as the same comes into his hands, under the supervision of the chancellor, and in such manner as he may order and decree."
"SEC. 6. That when collections shall be made, or taxes paid, as herein provided, or in current or in lawful money of the United States, it shall not be lawful for such receiver and back tax collector to coerce payment of a greater sum than one fifth part annually, so as to distribute the whole through five equal annual installments. The said period of five years shall begin from the time of the appointment and qualification of the back tax collector and receiver, and all costs of condemnations, penalties, and charges are hereby remitted, in all cases where taxes are collected under this act, provided, however, that nothing herein contained is intended to interfere with any vested right which entitles the party having such right to a speedier collection, but only to extend the indulgence where the state has the power to do so without interfering with vested rights."
"SEC. 7. That funds collected under this act shall be paid out by the treasurer of the state, from time to time, to those entitled, in such manner as the chancery court may adjudge and decree, on the warrant of the receiver, countersigned by the chancellor."
"SEC. 8. That the compensation of the back tax collector and receiver of the extinct corporation of Memphis shall be two thousand
dollars per annum, but after two years the county court shall fix the salary of said officer, not to exceed two thousand dollars per annum, and of such other municipalities as this act may apply to, such sum as the quarterly court of the county may allow, in no case to exceed the sum that would be paid to the county trustee for like service."
"SEC. 9. That the receiver and back tax collector shall have power to employ an assistant at a compensation not to exceed one hundred dollars per month during the time he is in actual service."
"SEC. 10. That publication shall make all creditors, parties, with the right to relief as fully as if especially named, and they may at any time file with the clerk of the court their claims, or attested copies, retaining the original if they desire, subject to be produced, however, as the court may order, and placed in the custody of the clerk. The simple filing of said claims, respectively attested by the affidavit of the owner of his agent or attorney, shall be proof of such claims in common form, and, if not contested, entitle the same to payment pro rata; and for administering the oath in proving such claims in common form, and filing the same, the clerk shall receive the sum of ten cents, to be paid at the time of making the oath and filing the claim. If any creditor or the receiver and back tax collector shall desire to contest the validity in whole or part of any claim filed in common form, he may do so in a summary way in the progress of the cause. The opposing parties in such contest shall reduce the facts to writing that are necessary to its determination, and file the same, and when filed they shall become part of the record, and the court shall have power, upon motion, and in a summary way, to hear and determine all questions of priority of payment in the progress of the cause. When any party is dissatisfied with the decision of any litigated question, he may have such question reheard upon appeal or writ of error in the supreme court, but so much of the record only as pertains to that particular litigation shall form the transcript and record for the appellate court, and the costs shall be paid by the parties to such appeal as the appellate court may direct, unless the receiver and back tax collector is a party to the litigation on behalf of creditors generally, and in that case the costs may, if the appellate court think proper, be charged to the whole, or to some particular fund, as right and justice may require."
"SEC. 11. That nothing herein shall be construed to prejudice the right of redemption now allowed by law to any person for redeeming land hitherto sold for taxes, or that may hereafter be
sold under the provisions of this act, and as to all lands within the limits of such extinct municipalities heretofore sold for taxes and bid off in the name of the state or the city, the former or their heirs or vendees shall have five years from and after the passage of this act within which to redeem the same, but until such redemption, such property shall be and remain the property of the state, and the owners, their heirs or vendees, shall alone have the right to redeem."
"SEC. 12. That it is the duty of the attorney general of the district wherein is situated the taxing district, as provided for in the act aforesaid, and they are hereby required immediately to suggest of record in all the courts of this state, and of the United States, where suits are pending against said municipalities, the repeal of the charters of the same."
"SEC. 13. That the proceedings in all suits now pending for the collection of taxes due such extinct municipalities shall be suspended until the filing of the general creditors' bill and the consolidation provided for in this act, and said general creditors' bill shall be prepared and filed by the receiver and back tax collector as soon as practicable, and within six months from his appointment and qualification, and to enable him to prepare said bill he is authorized to employ, under the direction of the chancellor, any cash funds that may come into his hands in obtaining any necessary abstracts of title."
"SEC. 14. That this act shall take effect from and after its passage, the public welfare requiring it."
"Approved March 14, 1879."
Pursuant to the provisions of said chapter 92, the Governor of Tennessee appointed Minor Meriwether to be receiver and back tax collector. Thereupon the complainants, April 10, 1879, filed in the consolidated causes an amended and supplemental bill, to which Meriwether, William F. Hardin, Joseph R. Williams, and John B. Hill were, in addition to the persons mentioned in the original and amended bills, made defendants. This bill, after stating the filing of the original and amended bills by the various complainants, alleging the contents thereof, the failure of the defendants to either plead, answer, or demur thereto, the appointment of Latham as receiver, the execution of his bond, and his entry upon the duties of that office, and charging that said Meriwether, as receiver and back tax
collector, is interfering with said Latham as receiver of the court, and is impeding him in the collection of back taxes, and discouraging and preventing payments to him; that the defendants, Hardin, Williams, and Hill, who are citizens of and residents in the City of Memphis, although indebted to it for taxes long overdue and unpaid, refuse to pay them to said Latham as receiver, prays that an injunction may issue restraining said Meriwether, his agents and attorneys, and each of them, from demanding, taking possession of, recovering, collecting or attempting to collect, or in any way interfering with the assets and property, real, personal, or mixed, or choses in action, of the City of Memphis, including the debts due to her, taxes of every description heretofore assessed and levied by or for her, and the evidences of such assets, property, debts, and taxes, consisting of deeds, bonds, bills, notes, accounts, books of assessment, tax books and other books, and writings of every description, having reference to such property, assets, debts, taxes, or any part thereof, and from instituting or prosecuting any suits or actions of any kind whatever in any court against the said Latham, as such receiver as aforesaid, or against any other person or persons, for the recovery of any part of the assets or property, debts, taxes aforesaid, or any tax books, assessment books, or other books or writings of any kind having connection therewith or reference thereto or to any part thereof, and from doing any act or thing, and from making or publishing in any manner whatsoever any declaration or notice, printed, written, or verbal, asserting or tending to assert that the right to the property or custody or control of the said assets or debts or taxes of the City of Memphis, or property of any kind thereof, or to collect or receive the same, is rightfully in him, the said Meriwether, or is not in the said Latham, as such receiver, or tending to persuade or advise, prevent, hinder, or deter the persons owing debts or taxes to the City of Memphis from paying the same to the said Latham, as such receiver; that an account may be taken as to the amount of taxes or debts due from each and every of the said defendants, Hardin, Williams, and Hill, and the particular lot or lots of land upon which the said taxes were assessed and levied, and upon which they constitute a lien, and the
amount due and owing by them to the City of Memphis on account of past due taxes or on any other account; that the complainants may be subrogated to all the rights, claims, and liens of the said City of Memphis against the said defendants severally; and that the lien which the said defendant, the City of Memphis, held or holds against or on the several lots and parcels of land aforesaid, on account of said taxes assessed and levied thereon, may be declared and fixed by decree for the benefit of the complainants and other creditors in like attitude, and that personal decrees be also rendered against each of said defendants for the amount found due from them on the taking of the said accounts for the benefit of complainants; and that unless said defendants shall severally pay into the registry of this court by a day fixed the amounts so found due from them on the claims aforesaid, that then the court decree that said several parcels or lots of land be sold to satisfy the amounts so found due on account of each as liens thereon, and in order that all equity of redemption or repurchase shall be cut off and for ever barred; that the said lots be sold on a credit of seven months, and barring all right of redemption, and the proceeds when realized be applied to the payment of the complainants' claims herein, and other creditors in like attitude who may come in and be made parties hereto.
The defendants demurred, setting up sundry grounds therefor. The judges, upon consideration of the matters thereon arising, were divided in opinion upon the following questions:
1st, whether, inasmuch as the first of the original bills filed in these consolidated cases was filed in this court prior to the 29th of January, 1879, the date of the act of the General Assembly of the State of Tennessee repealing the charter of the City of Memphis, this court had or has any jurisdiction to seize and impound the assets, revenues, and properties of the corporation in being, described in complainants' bill, and to place those assets, revenues, and properties in the hands of a receiver appointed by the court to collect, administer, and disburse the same in the payment of creditors of such corporation.
2d, whether the act of the General Assembly of the State of Tennessee, entitled "An Act to repeal the charters of certain municipal corporations, and to remand the territory and the inhabitants thereof to the government of the state," passed Jan. 29, 1879, and approved Jan. 31, 1879, and which act in terms, as shown therein, repealed the charter and all laws incorporating the City of Memphis, was and is a valid law, or whether the said act is contrary to the Constitution of the State of Tennessee or to the Constitution of the United States, as against creditors holding bonds and debts contracted prior to the repeal.
3d, whether this court has jurisdiction to seize and impound and administer the assets, properties, and revenues of said municipal corporation, when it appears that the mayor and other officers of said municipal corporation have abandoned their offices and duties, and where it also appears that the General Assembly of the state has passed a series of these acts, one repealing the charter of Memphis; the second, creating a taxing district in the same territory and providing a government therefor; and the third, to collect and dispose of the taxes assessed for municipal corporations in this state, &c., being chaps. 10, 11, and 92 of the acts of 1879.
4th, whether, if the act of the General Assembly repealing the charter of the City of Memphis be valid, the effect thereof was to extinguish all claims, debts, dues, and demands to and from said municipal corporation, including the claims of the various complainants in these causes.
5th, whether, if said act repealing the charter be declared valid, and that the effect thereof was not to extinguish all claims, debts, dues, demands to and from said municipal corporation, this court has jurisdiction to collect the taxes which had been lawfully assessed by said municipal corporation and due before the repeal of its charter, but which have not been collected.
6th, whether, if this court has jurisdiction to collect back or delinquent taxes, it can do so by directing its receiver to sue the delinquent taxpayers, and if so, in what court, state or federal, must such suits be brought, or can the court, by proceeding in the nature of garnishment, require the delinquent
taxpayers to come before the court and pronounce judgment against each for the amount found to be due.
7th, whether this court has jurisdiction to enforce the lien on real estate for taxes which the said municipal corporation possessed by proceeding in these causes or otherwise.
8th, whether upon the entire record this court has jurisdiction to entertain the bills and grant any relief to the complaints.
9th, whether after the taxes already levied and uncollected, due said corporation, and the other property named in these bills, shall have been ascertained to be insufficient to pay all the creditors of said city, that then this court has power to bring in all or any part of the inhabitants and corporators within the limits of said dissolved corporation by process, and make assessment against them or their property to pay the balance of entire debt found owing from said corporation pro rata, and render judgments and decrees against each of them for the pro rata share or amount found due from said dissolved corporation, and enforce liens against specific property against which taxes shall have been levied.
10th, whether where the charter of a municipal corporation has been repealed the creditors of such municipal corporation have a right to any relief, except such as the state, through and by its legislative enactments, may afford to such creditors.
13th, whether the fourth section of the Act of the Legislature of the State of Tennessee, approved Jan. 31, 1879, chapter 10, acts 1879, repealing the charter of the City of Memphis, and the fourteenth section of an act of the said legislature, approved on the thirty-first day of January, 1879, being chapter 11 of the acts of said state for 1879, and act of the said legislature, approved March 13, 1879, being chapter 92 of the acts of said legislature of 1879, and particularly sections 4, 5, 6, 7, 11, and 13 of said act, as far as complainants are concerned, and the creditors who have made themselves parties, and the receiver of this court who was appointed before said act was passed, are in violation of the Constitution of the United States and of the Constitution of the State of Tennessee, and void.
The presiding judge being of opinion that the demurrers
were not well taken, they were overruled, whereupon, the defendants electing to abide thereby, the court, May 28, 1879, decreed that the complainants, and the other creditors who had made themselves parties under the leave of the court, and such others as might so make themselves parties, do have and recover of and from the City of Memphis the several debts due them respectively, the amounts of which would be fixed by the court, and that all the assets and property of every description theretofore belonging to the City of Memphis, or so much thereof as may be necessary for the purpose, including taxes heretofore assessed and remaining unpaid and due the city, be applied to the payment of such debts, to which end said Latham, as receiver, was directed to retain possession of all the assets and property, books, papers, and writings, placed in his hands to be disposed of only as the court might order in the progress of the suit, and that he collect the said assets and property in the manner directed by the former orders for the payment of the said debts. The court further decreed that the defendant, Minor Meriwether, as receiver and tax collector, be perpetually enjoined from taking possession of, collecting, or attempting to collect, suing for, or in any way interfering with, said assets, property books, papers, and writings, so in the possession of or to be collected by said Latham as such receiver; that all the property within the limits of the territory of the City of Memphis is liable and may be subjected to the payment of all the debts aforesaid owing by said city, and that such liability shall be enforced thereafter from time to time in such manner as the court might order and direct; that Latham, the receiver aforesaid, recover of the defendant Williams the sum of $6,843.46, of the defendant Hardin the sum of $954.85, and of the defendant Hill the sum of $6,638.38, being the amount of taxes due by them respectively to the City of Memphis; that executions issue on the said several decrees, the right being reserved to enforce all liens that might exist on any and all property for the payment of the said sums or any part thereof.
Meriwether and the other defendants then appealed here.