# Fleming v. City of Memphis

> Tennessee Supreme Court · April 15, 1912 · 126 Tenn. 331

URL: https://www.frixlaw.com/law-library/cases/8300833

## Case

- **Full name:** Annie E. Fleming, by next friend v. City of Memphis
- **Court:** Tennessee Supreme Court
- **Decided:** April 15, 1912
- **Citations:** 126 Tenn. 331
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Lajnsden
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8300833

## Opinion text

ON PETITION TO REHEAR.
The foregoing opinion was prepared and announced at the close of the last term, but a rehearing was granted upon an earnest petition filed by counsel for the city, insisting that under the terms of the defendant’s original charter, it being chapter 11' of the Acts of 1879, all municipalities, of this State could have the benefit of the exemption in question by surrendering their charters as provided by section 22 of that act and reincorporating as taxing districts. This insistence is based upon the following provision of the city’s charter :
“That the several communities embraced in the territorial limits of all such municipal corporations in this State as have had 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. . . .
“That whenever any community under the government of a municipal corporation at the time this act takes effect, having a population of less than 85,000 inhabitants according to the federal census of 1870, may desire to be governed by the provisions of this act, the authorities of such corporation shall cause an election of the qualified voters of such municipal corporation to be held.”
*341 It is insisted that under the foregoing provisions of the charter any conimnnity of the State may take the benefit of the taxing district act, and for that reason the statute is general, and fails within the principle of Cook v. State, 90 Tenn., 407 , 16 S. W., 471 , 13 L. R. A., 183, and Burnett v. Maloney, 13 Pick., 697 , 37 S. W., 689 , 34 L. R. A., 541. But in this assumption counsel are clearly in error. It is only municipal corporations having a population of less than 35,000 inhabitants, according to the federal census of 1870 which are permitted to reincorporate under the act in question, and such an inflexible classification was held void in Woodward v. Brien, 14 Lea, 520 ; Burkholtz v. State, 16 Lea, 71 , and Sutton v. State, 96 Tenn., 696 , 36 S. W., 697 , 33 L. R. A., 589. This section is void, because it does not apply equally and alike to all municipalities then and thereafter having the requisite population, nor does it extend to nor embrace all such which may come into the like situation and circumstances, for the reason that the classification is based solely upon the federal census of 1870. This question is fully discussed in the cases last cited, and the principle there decided has never been questioned by any one. It necessarily follows that the clause of the charter of the city of Memphis under discussion is indeed “a special dispensation accorded to that city by the legislature,” and is vicious class legislation.
We have not discussed in this opinion the various arguments presented by counsel, for the reason that the-questions involved are deemed to be so elementary and *342 so firmly settled that no amount of discussion could add to their clearness or their strength. We have not considered the proposition of counsel which urges the. court to overrule the long line of cases establishing the general doctrine in this State of the liability of municipal corporations for injuries resulting from neglect of their streets. We decline to reconsider these cases, or to entertain an argument which has for its object a reopening of the questions settled by them; and as we adhere to this line of authority, it is imperative that the section of the defendant’s charter under consideration be declared void.
The petition to rehear is dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8300833. Public record. Not legal advice.