State ex rel. Gaines v. Whitworth , 76 Tenn. 594 ( 1881 )

T. M. Jones, Special J.,

delivered the opinion of the court.

State of Tennessee, on the relation of James R. Gaines, comptroller of the State, filed a petition in the circuit court of Davidson county, for a mandamus to compel the trustee of Davidson county to assess- and collect the taxes upon certain town lots and the improvements thereon, located in the city of Nashville, and known as the “ free territory,” and which the petition alleges “by mistake of law or facts, or perhaps by both, had not been taxed.”

It is insisted by -the counsel for the plaintiff in error, that the act of 1879, upon which this proceeding is based, is unconstitutional, because it comes in conflict with the 17th section of the 2d article of the Constitution, which is in the following words: “Noé bill shall -become a law, which embraces more than one subject; that subject to be expressed in the title. All acts which repeal, revive, or amend former laws, shall recite in their cajition, or otherwise, the title or substance of the law repealed, revived or amended.”

It is insisted :

1st. That this act is merely an amendment of the • general revenue act of March 9th, 1877, and yet does ■-not recite the title or substance of that act.

2d. Its title does not express its subject. It is entitled “ An act for the more rigid collection of the revenue,” when it should be in the plural, as the act embraces three revenues, to-wit, State, county and municipal.

3d. That it embraces more than one subject, to-wit: assessment — collecting three separate and distinct revenues — the increase of the jurisdiction of justices — the regulation of the practice before them, etc.

The construction of this provision of the Constitution of 1870, came before the Supreme Court of Tennessee in about two years after its adoption. In an opinion delivered by Chief Justice Nicholson, who was a distinguished member of the convention which framed the Constitution, he says: “The convention evidently designed to cut wp by the roots, not only the pernicious system of legislation, which embraced in one act incongruous and independent subjects, but also the evil practices of giving titles to acts which conveyed no real information as to the objects embraced in its provisions.” In that opinion he quotes with approbation from Judge Cooley, in his able work on Constitutional Limitations, that “the general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object, to be provided for by a separate act relating to that alone would not only be unreasonable, ■ but would actually render legislation impossible.” “ The generality of a title is no objection tout, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection. The Legislature must determine for itself how broad and comprehensive shall be the object of the statute, and how much particularity shall be employed in the title in defining it.” The learned judge says: “We concur in these general views as sound and practical, and by them the validity of the act in question must be tested”: 8 Heis., 519. And he announced as the conclusion of the court, “that any provision of an act directly or indirectly relating to the subject expressed in the title, having a natural connection therewith, and not foreign thereto, should be held to be embraced in it.” The title of the act in that case was, “ An act to fix the State tax on property,” and the court held that a provision for a tax on privileges was properly included in the title, and not in conflict with that article and section of the Constitution. The question again came before the Supreme Court of Tennessee, in the case of Luehrman v. The Taxing District, 2 Lea, 426. Judge Cooper, who delivered the opinion of the supreme court, says: “Under a similar provision in the Constitution of other States to the one quoted, it has been uniformly held, that only the general or ultimate object of the act need be stated in the title, and not the details by which that object is to be attained;” and quoting from Judge Cooley, in his work to which reference has already been made, says': “There has been a general disposition to construe these constitutional provisions liberally, rather than to embarrass 'legislation by a construction- whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.” Accordingly the court held in that case that an act entitled, “ A bill to establish Taxing Districts in this State and to provide the means for the local government of the same,” which grants municipal franchises to the communities within the territorial 'limits of the Taxing District, and gives to the corporation thus created all the necessary legislative,, judicial and police powers of an incorporated city, and contains specifications of offenses against the corporation, or committed by its officials with penalties and punishments, contains only one subject within the meaning of the Constitution. The question again came before the Supreme Court of Tennessee in the case of Morrell v. Fickle, 3 Lea, 79, in which a majority of the court held that an act entitled “An act to establish a Chancery and Law Court at Bristol in the county of Sullivan,” is constitutional. The writer of this opinion has not had the opportunity of examining the opinion of the court in the case of the State v. Bethel, referred to in the very able argument of the counsel. He has been informed that it is not in conflict with the cases reported in 8 Heiskell and 2 Lea, and the long list of authorities by which those decisions are sustained. The strong and impregnable arguments and reasons by which they are supported, we think, settles the questions therein involved as firmly as they can be settled by judicial decisions.

Let us now test the act in question by the principles laid down in these decisions. The general subject of the act is revenue. It is entitled an act “for the more rigid collection of the revenue,” and each and every section in the act has direct reference to the-subject of revenue.

It is true, the act makes all collectors assessors, to-assess all property “which by mistake of law or facts has not been assessed,” “and proceed to collect the same,” and while it is true, as argued by counsel, that “ collection is a process beginning after assessment,” yet it is equally true that each has reference to the same subject, and the one is the means provided by the act "for the attainment of the end expressed in the title, to-A^it, “the more rigid collection of the revenue,” as it is evident that no taxes could be collected until this assessment was made. The provisions in the act, that suit may be brought for the recovery of these taxes by the issuance of a warrant by a justice of the peace in the name of the State, county and municipal corporations jointly or separately, and giving justices of the peace jurisdiction “to try all such cases, no matter what the amount,” is liable to a more serious objection, but we do not deem it necessary to pass upon this provision of the statute, as this proceeding commenced by a petition for a mandamus in the circuit court.

If some of the provisions of the act are unconstitutional, because not indicated by the title, or for any other cause, yet it is an universal rule, that so much of the act as is not in conflict with the Constitution must be sustained: Cooley on Constitutional Limitations, 148. Nor do we regard the act before us as an amendment to the act passed on the 9th of March, 1877. That act is entitled, “ an act to amend all laws for the assessment of property.” The act of 1879 is, “for the more rigid collection of the revenue.” It does not repeal, or change, or modify any provisions of the act of 1877. Its object is, “to assess all property which by mistake of law or facts has not been assessed,” and collect the taxes which may be assessed upon the same.

2d. • It is also insisted by the counsel for the plaintiff in error, that if the act of 1879 is constitutional and valid, yet, “a mandamus will . not lie to. compel obediencé thereto, since there is another adequate remedy by indictment. It is true that by the provisions of the Code, sec. 559 a, if a tax collector shall wilfully refuse to value all taxable property in good faith, according to the standard laid down in the Code, he may be indicted for a misdemeanor, and upon conviction punished as' other misdemeanors. While it is a fundamental principle, that mandamus will not lie where there is any other specific adequate remedy, yet it has been repeatedly decided, that an indictment is not a sufficient and adequate remedy: Moses on Mandamus, page 190; The People v. Mayor of New York, 10 Wendell, 395; Rex v. Laverne and Rye Railway, 2 B. & Ald., 646.

A mandamus is certainly the more efficient and appropriate remedy to compel the collectors of the public revenue to proceed and perform their duties. For, unless there was some summary process to compel the performance of these duties, the public treasury would become embarrassed, and great public mischief might ensue : Moses on Mandamus, 139.

Believing, as we do, that the act of 1879 is constitutional and valid, at least all of the provisions of the act, so far as they are applicable to this case, and that a mandamus is an appropriate remedy, this brings us to the consideration of the more important question, as to whether the town lots and' improvements thereon mentioned in the exhibits to the petition, were at the time the petition was filed, exempt from taxation. In 1785 the State of North Carolina, before her adoption of the Constitution of the United States, and when the State of Tennessee was embraced within her boundaries, incorporated the Davidson Academy.

In 1789 North Carolina ceded the territory of Tennessee to the United States, reserving in the cession act, rights under the grants of the State: 1 vol. Code, page 195.

In 1796, Tennessee was admitted as a State into the Union, and in 1806 incorporated Cumberland College. The preamble of the act reciting that the trustees of the Academy had petitioned that its funds and property be united with and merged into those of the College.

By the 1st section of the act of 1785, the Reverend Thomas Craighead and others were declared “to be a body politic and corporate, to be known and distinguished by the title of the trustees of Davidson Academy,” with power “by gift, purchase or devise, to take, have, receive, possess, enjoy and retain to them and their successors forever, any lands, rents, etc.” The second section gives the trustees the power “to bargain,sell, alien and convey any such lands, rents, etc.” The 6th section is in these words: “ That no lands, tenements, or hereditaments which may be vested in the trustees of the Academy of Davidson, for the sole use and behoof of the Academy, shall be subject to any tax for the space of ninety-nine years.”

By the 7th section: “ Two hundred and forty acres of the land reserved for the use of the State, being that part of said land which is most remote from the salt springs near Nashville, shall be, and is hereby vested in the trustees of Davidson Academy for the use of that seminary.” It is conceded that all of the town lots and improvements thereon sought to be taxed by this proceeding, are located within the boundaries of this grant of two hundred and forty acres.

By the 6th section of the act incorporating Cumberland College, “all of the property, real and personal, of what kind soever,” vested in the trustees of Davidson Academy, was upon the petition of the trustees of Davidson Academy, vested in the trustees of Cumberland College, and “ all acts establishing or granting a charter to said Davidson Academy” were repealed, “ except so far as will authorize the collection of the debts due the said Academy.”

The 9th section of the act is in the following words: “ Be it enacted, that all property real and personal, by this act appropriated and made over for the use and benefit of said College, and all property of what kind soever, that may hereafter be given to said College by donation, bequest, or otherwise, is hereby declared free of any taxation whatever.”

The 10th section made it the duty of the “board of trustees of Davidson Academy to execute deeds of' conveyance for the lots by them sold adjoining the town of Nashville, agreeably to the existing laws which were in force at the time of such sale, anything in this act to the contrary notwithstanding.”

The principal question in this case arises upon a proper construction of the 6th section of the act of 1785, passed by the Legislature of .North Carolina, incorporating Davidson Academy, and the 6th and 9th sections of the act of 1806, incorporating Cumberland College. That the Legislature of a State, unless restrained by its organic law, has the power to exempt from taxation either for a limited time or permanently, property real or personal, when held by trustees for the benefit of her educational institutions, we think is now too well settled to admit of argument: See Dartmouth College v. Woodard, 4 Wheaton, 637; Rousa v. Home of Friendless, 8 Wall., 438; University v. People, 9 Otto, 310.

The power of the State to part with its right to-tax this property .when it is no longer held by the trustees for the benefit of these institutions of learning, but has been conveyed to third parties, or even to surrender its powers of taxation for an indefinite-period, has been .seriously questioned by some of our ablest judges: See the dissenting opinion of Judge-Miller, in which Chief Justice Waite and Field concurred, in the case of Washington University v. Rousa, 8 Wallace.

But the weight of authority, we think, has settled. the question in favor of the power: See New Jersey v. Wilson, 7 Cranch, 164; McGhee v. Mathison, 4 Wall., 133; Humphrey v. Pegus, 16 Wall, 244; Morgan v. Louisiana, 93 U. S., 217.

While it is true, as has been so well and ably argued, that the power of taxation is the “lifeblood” ■of a government, and that it cannot part with all of its powers of taxation, as no government has the right to destroy itself, yet it is equally true that virtue and morality, education and intelligence, are equally necessary for its preservation, and without which no good ■government, especially no free constitutional government, can long exist. It may be difficult to define the limit as to the power of the Legislature to part with this right of taxation, yet we are content to draw the line, where a long list of well-considered cases of the Supreme Court of the United States, and almost every State in the United States 'have drawn it, around the school-house and the church, and in some instances where it was necessary to invite capital to build a great highway to carry off the products of a State to the markets of the world.

In the absence of any constitutional provision, the ■question rests within the sound discretion of the Legislature. In a representative government it was believed that this discretion would not be abused. Even the amended Constitution of Tennessee of 1870, which in article 2, section 28,. says, “all property, real, personal or mixed, shall be taxed,” vests the Legislature with the discretionary power of exempting without limit as to time, “ such property as may be held- by the State, by counties, cities or towns, and used exclusively for public or corporation purposes, and such as may be held and used for purposes purely religious, charitable, scientific, literary or educational.”

The question is not whether the Legislature of North Carolina in 1785, when it incorporated Davidson Academy, or the Legislature of Tennessee in 1806, when it incorporated Cumberland College, had the power to exempt from taxation for ninety-nine years, the town lots and improvements thereon, or the lands embraced within the grant of the two hundred and forty acres vested in the trustees of Davidson Academy, but whether it was the intention of the Legislature, that this exemption should attach to the land and follow it into the hands of purchasers from the trustees. No fair construction can be placed upon the act of 1785, which admits of a doubt, but that it was the-intention of the Legislature of North Carolina to exempt from taxation these two hundred and forty acres, of land, .while held by the trustees for the use and benefit of the Academy, for ninety-nine years; and it is equally free from all d'oubt, that it was the intention of the Legislature of Tennessee by the act of 1806, which upon petition of the trustees of Davidson Academy, merged “its funds and property” “in those of Cumberland College,” and vested “ all the property, real and personal, of what kind soever of Davidson Academy,” in trustees for the sole use and benefit of said College, to exempt from any taxation whatever,” not only that portion of the two hundred and forty acres which had not been sold by the trustees of the Academy of Davidson county, but all the other property, “real and personal/’ which had been appropriated by the act, or which might be given to the College, -by donation, bequest or otherwise, not only for the' unexpired term of ninety-nine years, but só long as the same should be held by the trustees for the sole use and benefit of the College.

But did the Legislature intend to surrender its power of taxation of these lands, when they were no longer held by the trustees for the use and benefit of the Academy or College, but had been conveyed by the trustees to bona fide purchasers? The record is silent as to the contemporaneous construction given of these acts by the State, county, or municipal governments — whether any taxes were assessed and collected, or attempted to be assessed and collected upon these lots before 1836, a construction which has always had great weight with the courts, and our ablest judges have hesitated to disturb it: 1 Yer., 360; 2 Head, 320; 7 Heis., 35. The Supreme Court of Tennessee, in several recent, cases,, have held the power to tax in a government involved its power to exist; and a relinquishment of the power is not to be presumed unless expressed in terms too plainly to be mistaken: 7 Heis., 40, 389; 8 Heis., 388, 456, 663; 9 Heis., 349.

Justice Field, in the case of Hoge v. Railroad Co., in the Supreme Court of the United States, reported in 9 Otto, 354, says: “ The power of the Legislature of a State to exempt particular parcels of property of individuals or corporations from taxation, not merely during the period of its own -existence, but so as .to be beyond the control of the taxing power of succeeding Legislatures, has been asserted in several cases in this court, although against the doctrine there have been several earnest protests by individual judges. But though this power is recognized, it is accompanied with the qualification, that the intention of the Legislature to grant the immunity must be clear beyond a reasonable doubt. It cannot be inferred from uncertain phrases or ambiguous terms.” “Whoever claims its surrender must show it in language which will admit of no other reasonable construction.” “ If a doubt arises as to the intent of the Legislature, it must be solved in favor of the State.” See also 18 Wallace, 225, in the Delaware Railroad Case; Tucker v. Furgerson, 22 Wallace, 575; Erie Co. v. Pennsylvania, 21 Wallace, 498; Cooley on Taxation, 52, and a long list of cases which we deem it unnecessary to cite.

From these high authorities — decisions of the Supreme Court of the United States — recent decisions of our own State and other States, and the principles and rules laid down by standard works, if the construction of the acts before recited was now brought before the Supreme Court of Tennessee for the first time, we would be constrained to hold that neither the Legislature of North Carolina or of Tennessee intended by these acts of incorporation, to surrender its power of taxation of these lands, when They were no longer “vested” in the trustees for the “use and benefit” of these institutions of learning, but had been conveyed 'to bona fide purchasers.

The Legislature of North Carolina and of Tennessee had the same great object in view, to-wit, to foster and build up these schools as great educational institutions of the youth of the country, which to use their own language, “has the most direct tendency to promote the virtue, increase the wealth, and extend the fame of any people; and as it is the indispensable duty of every Legislature to consult the happiness of a rising generation and endeavor to fit them for an honorable discharge of the social duties of life.” To accomplish this noble object the Legislature intended not only to exempt from taxation for ninety-nine years the two hundred and forty acres of land vested in the trustees, so long as it was held by them for the use of the Academy, but also to hold out inducements to a generous public to make donations for the same object; and although the argument is plausible, that to enhance the value of these lands and thereby increase the endowment fund, the Legislature intended to attach the exemption to the lands, yet it is not expressed, as now held by the Supreme Court of the United States and of Tennessee, “in language which admits of no other reasonable construction.” The language of the 6th section of the act of 1785 certainly admits of a doubt, if it does not convey the idea, that it was only to exempt these lands from taxation while they were held (“ vested ”) in the trustees for the “sole use and behoof of the Academy.”

In 1836 suit was brought in the circuit court of Davidson county, by the State of Tennessee v. Hicks, Ewing & Co., to recover the State tax alleged to be due from the defendants as owners of the rolling mill ■adjoining the town of Nashville. The facts agreed upon by the parties were as follows: “ That the land on which the rolling mill is located, is a part of the tract vested in the trustees of Davidson Academy and their successors in office, by the State of North Carolina, by an act of her Legislature, passed in 1785— then follows the 6th and 7th sections of the act of 1785 already cited. “The land thus vested was sold by the trustees of the University of Nashville (who succeeded to the rights of the trustees of Davidson Academy) to the defendants. The property when sold Avas represented as free from taxation.” Upon these facts the circuit court rendered a judgment against the State, from which a writ of error Avas prosecuted to the Supreme Court of Tennessee. Judge Turley, Avho delivered the opinion of the supreme court in that case, says that: “In the year i785, the State of North Carolina passed an act incorporating Davidson Academy, by the 7th section of Avhich the íavo hundred and forty acres of land reserved for the use of the State, being that part of said land Avhich is most remote from the salt-springs, near Nashville, Avas vested in the trustees for the use of the Academy; and by the 6th section of Avhich the lands, tenements and hereditaments, vested in the trustees for the use and behoof of. the Academy are exempted from taxation for ninety-nine years.” ‘■‘The trustees of this Academy have at ’different times disposed of, by bargain and sale, portions of the land thus given to the Academy by the State of North Carolina, a part of which is now owned by the defendants in error, on which an ad valorem tax is now sought to be collected by the State. The question is, has this tax been laid on the land contrary to the provisions of the 6th section of said act of incorporation? It seems to us that there can be no doubt, from the wording of the 6th section of the act, that it was the intention of the Legislature to exempt the land from taxation absolutely for the term mentioned, no matter into whose hands soever it might come, for, by the provisions of the 2d section of the same act the trustees are empowered ‘ to sell any lands, etc./ and if the Legislature had designed that the lands given by the State, of acquired from any other source, should only be exempt from taxation so long as they remained the property of the institution, and no longer, they would have so provided in express terms.”

The able counsel for the plaintiff in error insists that this decision is “a res judicata” of the suit now before us. That the same questions involved in this suit were involved in the suit of the State v. Hicks, Ewing & Co. That “when a matter is once adjudicated, it is conclusively determined as between the sfime parties and their privies; and this determination is binding as an estoppel in all other actions, whether commenced before or after the action in which the adjudication was made:” Ereeman on Judgments, sec. 249.

It is undoubtedly true, that the decision of the-case in 9 Yerger.is binding and conclusive upon the State, in all suits brought by the State against the same parties and their privies, involving the same questions; and it is equally true that the same questions raised and involved in the decision of the suit of the State v. Hicks, Ewing & Co. are raised and involved in this suit; but as the defendant in this suit, or defendants (treating the trustee as a mere formal party, and the owners of the lots mentioned in the exhibits as the real defendants'), are not in privity with Hicks, Ewing & Co., or were parties to that suit, and as each succeeding court can overrule its Own decisions, it follows that they cannot rely upon and plead the decision of that suit in bar of this suit: 5 Sneed, 105; 12 Heis., 34; see also Cooley on Constitutional Limitations, pages 48-9 and note 1, and cases cited.

But this brings us to the consideration of the last and decisive question in the case — and that is, how far we áre bound, to respect that decision, or regard it as binding upon us, although we may not concur in its correctness. The case was decided in 1836. It was argued by George S. Yerger, attorney-general and reporter for the State, and by the Hons. W. A. Cook,. E. H. Ewing and F. B. Fogg for the defendants — lawyers who, at that time stood at the head of the bar in Tennessee, and it is no disparagement to the profession to say, that since that time they have had no superiors and but few equals. It was decided by a court which for many years adorned the supreme bench of Tennessee, and commanded the entire confidence of the • profession, and of the citizens of the State. It was an agreed case, and doubtless made up that the important questions involved in it might be finally settled. We cannot suppose that it was not ably argued, and fully and carefully investigated. The State, the county, and the city have acquiesced in it for over forty years. Upon its correctness capital has sought investment in that “territory,” and built valuable improvements thereon. The petition makes a solemn admission that since 1836, “ this decision has been treated by the profession as settling the question that, this property was exempt for tax.es for the State, county and city.” It has to all intents and purposes become a rule of property, so far as a decision of the highest court in the State can make and establish that rule. While a court should not hesitate to overrule a decision which has been recently made, when fully convinced that it is erroneous, rather than perpetuate error, yet a very different principle prevails, when it has been acquiesced in for many years and established a rule of property. Judge Catron, in delivering the opinion of the court in the case of Talbott v. McGavock, lessee, 1 Yer., 277, referring to the decision of the court in the case of Napier, lessee v. Simpson, 1 Tenn. Rep., 447, says, “ that he understood the. bench and the bar, the Legislature and ,the community, to have acquiesced during the intermediate period of twenty years, in that decision, as being the law, and a correct construction of the act of 1797, and that with all possible deference to the opinion of others, it should not now be disturbed, independent of any doubts that might be entertained of its correctness.”

In 1840, Judge Reese, in delivering the opinion of the court in the case of Smith v. McCall’s heirs, 2 Hum. 166, referring to the case of Talbott v. McGacock, says: “ If we doubted, as we do not, the correctness .of the judgment in that case, we should still yield to its authority. A greater evil can scarcely be imagined than an habitual fluctuation in judicial opinion as to questions affecting the rights and regulating the conduct of a whole community in relation to real property.”

In 1870, Judge Shields, a special judge, who delivered the opinion of the court in the case of Sherfy v. David Argenbright, et al, although overruling some decisions of the Supreme Court of Tennessee, made shortly after the close of the war, in relation to the validity of contracts founded upon Confederate Treasury notes, clearly recognizes the soundness of the law as held by Judges Catron and Reese, in this strong language: “When a decision, or a series of decisions, have established a rule of property, and more particularly, a rule affecting the title to real estate, which has become generally known, and been acted upon, such a land-mark should not be disturbed: ” 1 Heis., 143. See also, the opinions of Judge Whyte, in the case of Nelson v. Allen, 1 Yerg., 376. The exceptions to the rule as thus established by the judicial decisions of the Supreme Court of Tennessee, may be found in the - cases cited in the brief of counsel of Vance v. McNairy, 3 Yerg., 197, and of Mitchell v. Lipe, 8 Yerg., 179; but Judge Green, in delivering the opinion of the court in the case of 8 Yerger, overruling his opinion in the 3 Yerger case, says: “ We feel the importance of adhering to' former adjudications, and the mischief' which result from a fluctuation of opinion on any question, yet questions will sometimes occur where a point may be adjudicated without the benefit of all the authorities which could shed light upon it, and when a consideration of it is highly proper.” ' It is thus plainly seen that the reasoning of the learned judge, so far from forming a rule, intends to bring that case within an exception to what he acknowledges to be a sound and well established rule of law.

Chancellor Kent says: “If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to-deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great land-marks of prosperity: 1 Kent, 415. Cooley, in his work on Constitutional Limitations, says: “It will, of course, sometimes happen, that a court will find a former decision so unfounded in law, so unreasonable in its deductions, or so mischievious in its consequences, as to feel compelled to disregard it. Before doing so, however, it will be well to consider wrhether the point involved is such as to have become a rule of property, so that titles have been' acquired jn reliance upon it, and vested rights will be disturbed by any change; for in such case it may be better that the correction of the error be left to the Legislature, which can control its action so as to make it prospective only, and thus prevent unjust consequences:” Cooley on Con. Lim., 52. Judge Bronson, in the case of Sparrow v. Kingsman, 1 N. Y. Rep., says: “ That after an erroneous decision touching the rights of property has been followed 'thirty or forty years, and even a much less time, ■ the courts cannot retrace their steps without committing a new error nearly as great as the one at first.” The construction given to a statute of a State by the highest judicial tribunal of such State, is regarded as a part of the statute: See 2 Black., 603, and a long list of authorities cited.

If, then, the exemption from taxation in the hands of purchasers from the trustee of the lands. embraced within the gi’ant of the two hundred and forty acres to the Academy in Davidson county, had been incorporated in the acts of 1785 and 1806, and the acceptance of these charters having been held a sufficient consideration to bind the States, neither a subsequent Legislature nor a Constitutional Convention, could pass any statute, or so amend the Constitution, so as “to impair that contract” or deprive them of those rights: See University v. The People, 9 Otto, 324.

The decision of the case of The State v. Hicks, Kwing & Co., in 1836, settled in clear and unmistakable terms, that all the land included in this two hrindred and forty acres, was exempt- from all taxation in the hands of purchasers, for ninety-nine years ■from the date of the ■ act in 1785. The legal profession., and the whole community have relied upon,, and acted upon that construction of the statute. Believing, and having a right to believe, that the question was finally settled, they have invested their capital in the purchase of these lots, and built their homes upon them. Now to hold those lands liable for taxes, and possibly for back taxes, • for may years, might bring ruin upon those families and confiscation of their property. But that would be the least of the evil consequences that would flow from such a decision. It would strike down all confidence in the stability of the judiciary, the last stay and hope of every community for the security and protection of their property.

Reverse the judgment of the Circuit Court arid dismiss the petition with costs.