Joel S. Enloe was sheriff and collector of Obion County.

Marr sued Enloe in trover, for a sack of coffee, which Enloe seized as sheriff and collector of the state and county taxes, of Obion County for the year 1828, for an alleged balance due by Marr of the county levy.

The parties agreed to the following facts.

That at the January session, 1828, or Obion county court, a majority of the justices proceeded to lay or assess the following tax for the year 1828, viz.:

The foregoing taxes were assessed by the county court, by virtue of the act of 1827, ch. 49, sec. 1, which provides “that the courts of pleas and quarter sessions, in the several counties in this State, a majority of the acting justices being present, shall at the first court in each and every year, levy a tax to meet the current expenses of their county for the ensuing year, upon all polls and property subject to taxation by the laws of this State.”

It is contended by Marr, that that part of the act of 1827, conferring unlimited powers of taxation upon the county courts, is unconstitutional and void, because it vests in the justices legislative authority upon a subject of the most vital importance to the citizens of every government, that of taking from them their property by way of taxation, not through their representatives, who are responsible and dare not oppress them, but by a few individuals in each county, holding permanent offices, and who are wholly irresponsible to the people whom they oppress with exorbitant burdens, acting without control as to the amount of tax imposed and collected, and almost equally so in the mode of its expenditure; that if the county court can tax the citizens one dollar each year on the hundred acres of land, it can, with equal claims to power, tax each hundred acres $100, and in a single year bankrupt every landholder, at least the poorer citizens whose lands are generally of an inferior quality. . . . It is next contended for the plaintiff, that the legislature cannot tax any one hundred acres of land higher than another; that giving the county courts power to fix the amount of tax at discretion will necessarily result in a violation of the constitution, and therefore the act of 1824 is void.

The constitution declares that “all lands liable to taxation in this State, held by deed, grant or entry, shall be taxed equal and uniform, in such manner that no one hundred acres shall be taxed higher than another.

It is suggested for the defendant Enloe, that this section of the constitution only refers to state taxes, contradistinguished from county taxes, and that the latter need not be equal and uniform; that the practice had been in North Carolina previous to the formation of the constitution, for the county court to tax unequally, which practice was recognized by the adoption of the laws of North Carolina.

No doubt the abuses of the county courts, when in the exercise of the taxing power of North Carolina, was one of the reasons why the foregoing clause was inserted in the constitution. Few of the lands in Tennessee in 1796 were cultivated, and the most fertile were sold at very low prices; hence there was little of seeming impropriety in taxing every acre alike. The interest of the non-resident landowners, who were to pay a great proportion of the taxes, had much weight, no doubt, with the convention. They wished to put it beyond the power of the legislature to tax their lands higher than those of the citizens.

To the foregoing provision there was no good reason to object, in the then country, but the increased value of lands in certain sections has rendered this restriction in the taxing power so grossly absurd, as to produce attempts to violate it by the legislature, by authorizing the county courts to tax at one rate in one county, and at another in the next, and ordering the charges of government to be paid principally out of the county treasuries. It never entered the mind of the legislature, or county courts, that the above clause did not equally apply to county and state taxes. The county tax has always been uniform and by the acre, throughout the county. If the constitution did not apply to the assessment of county revenue, why not levy it according to the value? Did the constitution provide that the lands lying in each county should be taxed “equal and uniform,” then the partial laws taxing the lands in one county higher than in another, would be well enough. But when the paramount law prescribes to the legislature, the creature of the constitution, limits to the taxing power on lands, so unquestionably precise as to leave no room for evasion or escape by construction, the courts must do their duty, and pronounce all laws taxing any one hundred acres within the state, higher than any other hundred acres, void.

It is not assumed for the defendant that the legislature can tax the lands of one rate, and those of another at a different, but that by act of Assembly, the county courts of the respective counties may be authorized to do this for county purposes. The legislature have no power to tax unequally; it cannot escape observation that that body can communicate none to the county courts. The principal has no authority; of course can transfer none to the agent. The constitution makes no distinction; it refers to all taxation on lands, collected by legislative authority. Were the construction contended for adopted, the legislature might direct the whole expenses of the government to be paid through the county treasuries, as is not the case to a great extent – when the constitutional restriction would be a dead letter. In this event, the county courts would be the taxing power, and no two tracts of land lying in different counties taxed equal and uniform, unless it should be the result of accident. All taxes are substantially the same; money levied upon property and polls for the support of government – names of taxes, referring to their designed uses, do not lighten the burden of him who pays.

Such is the constitution of Tennessee, which it is our sworn duty to support. It is an appalling absurdity truly, that an hundred acres of land, worth fifty cents an acre, should pay one dollar tax, and that another hundred acres, worth fifty dollars the acre pay the same amount of tax; we wish it were otherwise, but it is for the people to alter the constitution, if desirable; not the legislature . . . This law imposes upon every hundred acres lying in the ten counties to which it applies 12 1-2 cents more than on any hundred in other counties. The tax is unequal. The act imposing it is obnoxious to the constitution and void. . .We there for reverse the judgement of the circuit courts, and order it to be entered on the case agreed for the plaintiff to the value of the coffee.

Antebellum Tennessee:  A Documentary History, edited by Eric R. Lacy, who is a professor of early Tennessee History at East Tennessee State University.   Professor Lacy cites “From 9 Tennessee Reports – 408-410,  412-415 (1 Yerger 452-459).”