FELTON v. HAMILTON COUNTY, TENN., et al., 97 F. 823

LURTON, Circuit Judge, having made the foregoing statement of facts, delivered the opinion of the court. In Tennessee the power of the county courts to levy taxes is derived solely from legislative enactments, and any tax levied which is not authorized by some positive provision of law is ultra vires and void.

Article 2, § 29, Const. Tenn.; McLean v. Tennessee, 8 Heisk. 22, 268; Winston v. Railroad Co., 1 Baxt. 60; Nashville & C. & St. L. R. Co. v. Franklin Co., 5 Lea, 707. By general legislative provision the.counties of the state have power to levy, a tax for general county purposes, not exceeding the aggregate tax levied by the-state. In addition, the county courts have, from time to time, been authorized to levy certain special taxes. But by the act of 1895 (chapter 4, § 2, Acts Ex. Sess. 1895) it was provided that the aggregate of all special taxes authorized by law should not exceed 30 cents on each $100.

No power exists to levy a special tax unless clearly granted. Nashville & C. & St. L. R. Co. v. Franklin Co., cited above; Burnett v. Maloney, 97 Tenn. 704, 37 S. W. 689. No special act has been pointed out authorizing the levy of a special tax for Centennial purposes. The exhibition of the industries of the state and' counties of the state was held to be a public purpose, and the act authorizing counties to make an appropriation for county exhibits was held to be constitutional, in Shelby Co. v. Tennessee Centennial Exposition Co., 96 Tenn. 658, 36 S. W. 694.

But that act does not in terms, nor by necessary implication, confer power to levy a special tax. The authority is “to make appropriations of money” for-the purpose of providing a county exhibit. To “appropriate” means to set apart; to assign to a particular use. The obvious meaning of the act is that county courts should have power, out of the fund arising from taxes assessed for general county purposes, to appropriate, set apart, or assign, for the purposes of a county exhibit,, such sum of money as should be deemed prudent and necessary.

It neither conferred power to increase the total tax which might be lawfully levied for general county purposes, nor to levy a special tax to meet such appropriation. The special tax for Centennial purposes, not being authorized by any provision of law, was void. The decree will be reversed, and the relief denied.