On Rehearing.
This case was before us on a former day of the term, and is now before us again on petition to rehear, and to modify our former opinion, in so far as it refers to section 3, c. 513, p. 1153, Acts 1905, in relation to the electric-lighting business of street railway companies. It is said that the Memphis Street Railway Company, whose property is under consideration in the present case, is engaged in no such lighting business, hence that the question does not arise here and should not be disposed of in the opinion; and that what was said in the former opinion will unnecessarily and unjustly affect the business of other companies that are not before the court, and that have no opportunity to be heard. Furthermore, it is said that the business of electric lighting, in respect of those street railway companies that are so engaged, is so intermingled with their street railway operations that they cannot be separated for the purposes of assessment, so as to reach any just result, either to the State or to the companies so engaged.
It is, of course, a matter to be regretted that the decision of a case as a result of the enunciation of the *260principles upon wbicb it is based, always affects, indirectly at least, the rights of people not before the court; but this is a necessary infirmity, or incident at least, of all judicial proceedings which the wisdom of man has never been able to cure or change. We do not agree with counsel that it is unnecessary in the present case to consider the provisions of section 3, c. 513, p. 1153, Acts 1905, so far as they relate to electric lighting. It is necessary to pass upon that part of it which refers to electric lighting, because the attorneys for the complainant have challenged that particular feature of the act as introducing a new subject, and making the whole act void as in violation of article 2, section 17, of the constitution, and also as in violation of article 11, section 8, of that instrument. In the former opinion the conclusion was reached that the provision referred to constituted a separate subject, but might be elided, as merely incidental, under the rule as laid down in State, ex rel., v. Trewhitt, 113 Tenn., 561, 82 S. W., 480, and State v. Wilson, 12 Lea, 246, 254, and other cases, leaving the residue of the act to stand. I am still of that opinion, but the majority of the court have reached a different conclusion on the following grounds, in which I concede that there is greát force.
The statute under which street railway companies, and interurban companies are authorized to engage in the business of electric lighting, is chapter 406, p. 1150, Acts 1903. The first section of that act reads .as follows:
“Section 1. Be it enacted by the general assembly of *261the State of Tennessee, that sections 6 and 13 of the act entitled ‘An act. to provide for the organization of corporations/ approved, March 23,1875, being chapter 142 of the acts of 1875, be so amended that railroads and railway companies constructing, owning, and operating with electricity interurban railroads and street railroad companies, shall have and be invested with the following additional rights and powers to wit: To manufacture, generate and distribute electric light, electric heat and electric power for the purpose of supplying themselves and others; to construct, equip and own factories, plants, machinery and all appliances for the manufacture, generation and distribution of electric light, power and heat; to acquire, by purchase, lease, or other lawful contract, electric plants, factories, machinery and all appliances for the manufacture, generation and distribution of electric light, power and heat; to acquire by purchase, lease or other lawful contract, electric plants, factories, machinery, equipments, and appliances, and rights, easements, licenses and franchises, necessary or convenient to manufacture, generate, distribute and sell electric light, power and heat; to supply and sell to others electric light, power and heat; to acquire by purchase, lease or other lawful contract, water power, riparian and water rights together with all such licenses and franchises, easements, and privileges attached to, necessary or convenient to operate and use the same; and to have and possess all such other powers as shall be necessary *262to execute and perform tbe powers hereinbefore granted.”
Section 3, c. 513, p. 1153, Acts 1905, reads as follows :
“Sec. 3. Be it further enacted that every person, or corporation, owning, leasing, or operating interurban and street railroad properties, including electric light and power properties when owned or operated in conjunction with street railroad properties shall file with the comptroller of the State biennially on or'before the first day of April, commencing with 1905, a schedule or schedules stating and giving the following facts and information, viz: A list or statement of all of his or its property, real, personal, and mixed, owned or leased, setting forth therein the length in miles of the entire roadbed, switches, and side tracks showing the number of miles in each county, and the number of miles in each city, or incorporated town, the value of the whole, the amount of capital stock controlled by the corporation, the bonded debt, the gross annual receipts of the preceding fiscal year, the number of cars, their classes and value, the location, description, and value of all car sheds, transfer stations, power houses, and other real estate, and all real, personal, and mixed property belonging to the person or company owning said railroad, if a part of, and used in connection therewith, together with its value.”
Upon further consideration of the matter, and construing the foregoing section in connection with section *2631 of the above-mentioned chapter 406 of the Acts of 3903, the majority of the court are of opinion that the language upon the subject of electric lighting appearing in the foregoing section of the Acts of 1905, viz., “including electric light and power properties when owned or operated in conjunction with street railroad properties,” applies only to the case of electric lighting operations arising solely from the running of an electric railway plant as a railway, and to the sale of its surplus electricity so generated, and does not cover the case of a street railway company, or interurban company, owning and operating a separate electric light plant, or a plant run under chapter 406 of the Acts of 1903 for the purpose of conducting the business of electric lighting; and, in this view, that the provisions of section 3, c. 513, p. 1153, Acts 1905, upon the subject of electric lighting, do not constitute a separate subject in violation of article 2, section 17, of the constitution, and that so construed, the aforesaid section 3 of Acts of 1905 is not in violation of article 11, section 8, of the constitution. What would be the result in the case of a distinct plant owned or leased and operated by an electric railway company, and not an integral part of its railway business, the court thinks does not arise in the present case, and need not be considered.
On Motion to Modify Order.
After the original opinion was handed down in this case on the 20th of June, an application was made by de*264fendant’s counsel for a modification of the order directed in the last paragraph upon the subject of the issuance of a peremptory mandamus, so as to permit the filing of an answer upon the remand to the chancery court. This was opposed by counsel for complainant, and the court finally settled the particular controversy thus arising by entering an order granting to the defendant ten days from the adjournment of the court within which to file an affidavit setting forth the defense which he desired to incorporate in the answer which he proposed to file. This course, sanctioned by the authority cited in the original opinion, was adopted with the- view, on the one hand, of avoiding the possibility of shutting off a just defense, and, on the other, of guarding against unnecessary delay in the hearing of the controversy which the court had held it was the duty of the county trustee to take jurisdiction of and to hear.
Within the ten days granted the defendant,filed his affidavit, stating his grounds as follows:
“That at the time the matter of the assessment of said street railway was taken up before him, as a quasi judicial officer, affiant was informed and ascertained as a fact during his investigation into the facts of said back assessment for the years 1902, 1903, and 1904 that the Memphis Street Railway Company had been regularly assessed by the assessor of Shelby county, that said assessment had been reviewed by the county board of assessors for Shelby county, and that an appeal had been *265taken from the said county board to tbe State board of equalization, and that said appeal bad been acted upon, and that an assessment bad been finally made on said street railway company by said State board under said appeal. This affiant, then acting'as a quasi judge and construing tbe law and tbe acts of tbe legislature as best be could, deemed bimself bound by tbe assessment of said State board for said years. He thereupon ruled that tbe assessment made by tbe State board was a finality, and that be acting in said quasi judicial manner was bound thereby, and that be was without jurisdiction to' proceed further in tbe matter of said assessment.
“Under citation served on tbe Memphis Street Railway Company, tbe following facts among others were' disclosed during tbe examination for tbe respective years:
“1902. For tbe year 1902 tbe Memphis Street Railway Company appealed from tbe assessment of tbe assessor to tbe county board of equalization, and tbe county board of equalizers assessed tbe corporate property of tbe Memphis Street Railway Company at and for tbe sum of $980,000. From this assessment tbe State of Tennessee and tbe county of Shelby appealed to tbe State board of equalization, and this board assessed said property at and for tbe sum of $1,700,000. Affiant further found as a fact that tbe State board of equalization did during September, 1902, certify this fact to tbe county clerk of Shelby county, Tennessee.
*266“1903-04. Tbe county assessor, in the years 1903-04, following the action of the State board of equalization for the year 1902, assessed the property of the Memphis Street Railway Company for each of these years at and for the sum of $1,700¿000. The county board of equalizers reviewed the assessment for the year 1903, and also for the year 1904, and approved these assessments for both years. The State board of equalizers for both of these years approved the finding of the county board of equalization, and placed the assessment for- each year at the sum of $1,700,000.
“Affiant further found that the assessment acts of 1901 and 1903, in section 33 of each act, provided as follows: ‘When the county board of equalizers shall have determined the matters of equalization and value before it, and within its jurisdiction, such action shall be final except in so far as the same may be reviewed or changed by the State board of equalization.’ Also under Acts 1901, p. 346, section 38, subsec. 10, this language is used: -‘The action of- the State board of equalizers shall be final and conclusive as to all matters passed upon by the board, and taxes shall be collected upon the values so fixed and found by said board.’ The same identical language is used in Acts 1903, p. 674, c. 258, section 38, subsec. 10. This condition of facts, together with the law which your affiant presumed to be applicable to his action in the premises, constrained affiant to hold that the assessment of the State board of equalization was final, and that affiant was without jurisdiction, and *267liad no authority to make the assessment against said properties as requested.”
There are other averments in the affidavit, covering the year 1905; hnt, as the controversy in respect of that year has been eliminated, we need not further refer to this portion of the affidavit.
The defense sought to be interposed as to the assessment for the years 1902,1903, and 1904 is, in short, that, inasmuch as the State hoard of equalization had acted upon the assessments for each of these years, and subsection 10, above quoted, declares that the action of that hoard shall he “final and conclusive,” there can he no hack assessment, or reassessment, under section 31 quoted in the original opinion. •
We shall now examine this position.
In order to properly determine the matter, we. shall have to construe sections 31 and 38 of the said chapter 258 of the Acts of 1903; and, in doing so, we shall at the same time construe the act of 1901 referred to, since they are in respect of this matter the same.
In the original opinion section 31 is set out in full. By reference to that section, it will be seen that beyond doubt five cases are stated (subsections 1 to 5, inclusive) in which back assessments may be made. It is unnecessary to consider whether an additional ground is given in subsection 6.. It is perceived that in three of the five Instances (subsections 2, 3, 4) a case is supposed in which the board of equalization has already acted. So that, if subsection 10 of section 38, quoted in the affi*268davit, has a universal application — that is, admits of no exception to the generality of its language — sections 31 and 38 are directly in conflict. But the dictate of common sense, as well as the letter of the law, is that the several parts of an act must be considered together,, and so construed as to accomplish harmony between them, if that can be done.
In the original opinion we quoted subsection 11 of section 38. Turning to the language there quoted, it will be observed that the duty is devolved upon the State board of equalization to hear appeals upon matters of back or reassessment made by revenue agents or other officers of the State from county trustees or county court clerks; that the right of appeal from the decision of the county trustees, or county court clerk, as the case may be, in back assessment cases heard by them, or either of them, is given to the State, the county, and also to the taxpayer or citizen whose property has been reassessed, and that it is made the duty of the State board to hear the matter in controversy. This subsection 11 immediately follows subsection 10 quoted in defendant’s affidavit. Reading these two subsections of section 38 together, there can be no sort of doubt that, whatever may be the scope of subsection 10 in respect of the finality or conclusiveness of the action of the State board, it cannot extend so far as to exclude cases of back assessment or reassessment authorized by other parts of the act, but as to such matters they are to be treated as exceptions to the rule of finality expressed in *269subsection 10. Indeed, so careful was the general assembly to make sure tbe right and power of back assessment or reassessment in the special cases provided for, that it was declared in subsection 5 of section 38 that the State board during its'biennial session, “or at any other time,” “shall have the power to send any of its members to any portion of the State to obtain information and evidence deemed material, and to hear questions upon appeal from the action of trustees and county court clerks.” The subsection continues: “In cases of back assessments and re-assessments, to the duties .of equalization, said board, whenever deemed material, may hold at any time, sessions at said capitol or elsewhere for the transaction of business, other than that to be performed during the biennial sessions, which ses: sions may be held either before or after said biennial sessions,” etc. The lawmaking body.returns to the subject again in section 39, wherein it is declared that the assessments provided for in section 31 (that is, back assessments) shall not be made for any year other- than “for the year in' which said assessments shall be made, ■and for three years preceding samé.” So, if there is ■anything in the act wholly outside the field of doubt and speculation, it is that it was the purpose of the legislature to provide for back assessments in proper cases; but there never could be a back assessment if the action ■of the State board were final, in the sense suggested in •defendant’s affidavit, on the ground that it had passed upon and settled the original assessment, either under *270its general operation as a board of equalization or. on the exception of some taxpayer to the action of the county board; since the State board in one or the other of these methods passes upon all original assessments. The act provides (section 33) that all assessments shall go before the county board of equalizers. From this board they are passed on to the State board. Chapter 258, at pages'666, 667, 670, Acts 1903. The functions of the county board are triplicate — the primary one to equalize the assessments over the whole county; a secondary, or at least an additional, one, to hear complaints of individual taxpayers, either that the property of other taxpayers or of some other taxpayer is assessed lower than his own, or that his property is assessed too high, or the board may of its own motion raise or lower any assessment so as to place the property at its actual cash value. Acts 1903, pp. 665, 666. But the county board cannot raise any particular assessment until the property owner or owners affected by the increase shall have been notified and given an opportunity to be heard. Id., p. 665. When the county board of equalizers shall have determined “the matters of equalization and values, before them, and within their jurisdiction,” such action, the statute provides, “shall be final, except in so far as the same may be revised or changed by the State board of equalization.” Id., p. 667. The functions of the State board are in the main substantially the same as those of the county board, modified by the fact that the scope of its operations is wider, and that it does not en*271tertain original complaints of individual taxpayers except in tbe one instance below mentioned. Tbe primary duty of tbe State board is to equalize tbe assessments in tbe several counties over tbe whole State, so as to make them conform to tbe standard of tbe actual cash value of tbe properties involved; in performing wbicb duty equalization may be made by classification of properties by wards, civil districts or counties, or in sucb manner as may be deemed best to enable tbe board to justly and equitably equalize assessments in conformity with tbe-standard of actual cash value. Id., p. 673. This is tbe main work of the biennial session. Pages 672, 673. But at this session tbe board may bear tbe original complaint of an individual taxpayer that other property than bis own has been assessed at less than its actual cash value; and, as incidental to its power to re-examine, or review tbe work of the county board, it may re-examine complaints of this character made in that board, as well as tbe action of that board upon tbe complaints of individual taxpayers as to tbe valuation of their property. This power is found in tbe general duty of equalization (section 38, passim), and also in that portion of section 33 wbicb provides that tbe matters of equalization and values before tbe county board, and within its jurisdiction shall be final, “except in so far as tbe same may be tevised or changed by tbe State board of equalization.” Page 667. Another important function of tbe State board is to bear appeals from tbe decisions of county trustees and county court clerks in tbe matter of back *272assessments. Section 38, snbsec. 11; also, subsection 5, pp. 673, 676. Now, going back and stating in outline the process of assessment from the beginning to its completion, we have, first, the assessments made by the county and district assessors. Sections 13 to 18; sections 21 to 26. Then follow in regular order the duty of the assessors to turn over their assessment lists and books to the county court clerk (section 19), the requirement that the county court clerk shall turn over to the county board of equalization the assessment lists or rolls at its first day’s session for its consideration (section 33, p. 665), the provision that the county board of equalization shall upon the completion of its labors deposit its records and papers, together with the assessment lists with the clerk of the county court for preservation (Id.), and shall furnish a summary of its work together with a tabulated statement of certain data, to the State board of equalization (pages 666, 668, 670), then the performance by the latter of its duties in the valuation and equalization of property, as above mentioned (section 38, passim), and finally the certification by that board to the several county court clerks, showing corrections and changes in assessments, and the increases and decreases in the value of property, and the duty of the county court clerks to make proper and correct entries of these matters upon the tax books, to be turned over to the county trustee (page 674). Thus, it is perceived, all of the assessments come before the State board in regular course. Such changes as they *273make in individual assessments they make in tbe course of tbe regular routine. No appeal is provided from tbe county board to tbe State board. None is needed. •Objections made in tbe county board can be followed into tbe State board, and there renewed under forms and methods tbe latter may prescribe pursuant to subsection 4 of section 38. From all this, it is clear there is no trial in tbe sense of a litigation between contending suitors, but merely tbe means and methods provided for an administrative branch of tbe public service to enable it to reach a correct result in tbe assessment of property. No notice to tbe taxpayer is required, but be must take notice from tbe statute itself of tbe biennial session. Page 672. But, when tbe machinery is put in motion to back assess tbe property of a citizen, a marked change is noted. He must be served with a personal citation to appear before tbe county trustee (or county court clerk, as the case may be) and show cause, if any be has, “why said property should not be back assessed •or reassessed at its actual cash value.” Page 662. Under this citation a regular trial is bad before tbe county trustee (or before tbe county court clerk, in tbe case of merchants’ taxes), as a result of which be is to render a decision, fixing tbe rights of tbe parties, from which an appeal may be prayed and prosecuted by either party to tbe State board of equalization (subsection 11 of *274section 38, p. 674), “whose duty it shall be to hear the matter in controversy.” Ib. Now, it is clear that subsection 10 of section 38, viz., “The action of the State board of equalizers shall be final and conclusive as to all matters passed upon by the board, and taxes shall be collected upon the valuations so fixed and found by said board,” has quite a different meaning from that suggested in the affidavit. It means, indeed, that these valuations are not to be interfered with or changed by any other tribunal or court. It does not mean that the power of the State board is limited thereby; that is, it does not mean that when the State board shall have acted upon the valuations in the course of its ordinary routine in reviewing the work of the county board, that it (the State board) shall thereby cut itself off from a re-examination of particular assessments under proceedings instituted for procuring back assessments. To so hold would be to nullify every provision in the act upon the subject of back assessments. It is indeed true that' the legislature intended to declare in subsection 10, supra, that whenever the State board had finally passed upon the assessments, undér all of the powers conferred upon it, whether through its routine work of equalization at its biennial session, or subsequent proceedings for back assessment, this should be an end of the matter.
The learned counsel for defendant do not go so far in their brief as the defendant goes in his affidavit. In the brief it is said:
*275“Now, we earnestly submit that subsection 10 is a general provision, and as aforesaid applies absolutely and unequivocally to all matters that bave been passed upon by the State board of equalization. However, section 31 is a special provision applying only to the enumerated class of cases mentioned therein, and therefore in our opinion a proper construction of these two sections taken together is that all matters concerning the valuation of properties when passed upon by the State board of equalization are final, except in those cases which are. mentioned in section 31, .and which are exceptions to the general rule of finality.”
This construction is assented to in the reply brief of complainant’s counsel.
It is perceived that it is the same in substance as that reached by the court upon an extended review and comparison of all of the provisions of the statute applicable.
So, the court and the counsel upon both sides are at one on the' proposition that proceedings for back assessments falling within the provisions of section 31 are in nowise precluded by the provisions of subsection 10 of section 38, but may be instituted and carried to a conclusion under section 31 and subsection 11 of section 38.
This would seem to end the controversy by a general accord. Counsel for defendant, however, insist that the case before us does not fall within the several grounds for back assessment, or any of them, set forth *276in section 31. But counsel are precluded from making this point by the language of the original opinion in this cause. In that opinion we said:
. “Before directly taking up for consideration the points in the demurrer, we deem it proper to say that we think the facts stated in the bill, which we have set out, make out a case for the jurisdiction of the county trustee to reassess or back assess the property of the Memphis Street Railway Company, within subdivisions 2, 3, and 5 of section 31, above set out, of chapter 258 of the Acts of 1903.”
That determination cannot be reopened after the close of the term, nor could it be at any time made in the form of the present application. Besides, we are content with it as it stands, believing it to be perfectly sound and just.
In view of the construction given to the act, and our holding that the controversy as set forth in the bill falls within the provisions of section 31, no other conclusion is possible than that a proper case was stated for the jurisdiction of the county trustee; that the affidavit fails to show any reason why he should not take jurisdiction and proceed with the hearing of the case; in short, that it appears the defendant has no valid defense to offer against the issuance of the peremptory writ of mandamus, and the same order must be made upon this subject which was directed to be made near the close of the original opinion.
There is nothing in the numerous authorities cited *277in defendant’s brief that gainsays tbe conclusion we have reached. The whole matter turns upon the construction of our statute.
The question is argued in the brief of defendant’s counsel whether subsection 6 of section 31 of the act merely provides the means by which relief is to be had under the several grounds set out in subsection 1 to 5, inclusive, or whether, in addition, it contains a sixth ground, viz., the mere fact that the property was not originally assessed at its actual cash value. The defendant’s counsel insist that the former is the correct view, and that the latter is wholly inadmissible. The complainant’s counsel insist that the case presented by the bill is one of an undervaluation so gross as to place the subject-matter in the category of omitted property. We deem a consideration of these questions out of place here, since, as already stated, it was held in the original opinion that the bill made out a case under subsections 2, 3, and 5, of section.31 of chapter 258 of the Acts of 1903, and the affidavit filed by defendant under permission given at the last term shows no reason why he should not take jurisdiction and proceed to the discharge of his duty in the hearing and determination of the cause brought before him.
Let the order as above indicated be made for a remand to the chancellor with the direction to issue a peremptory mandamus.
The defendant will pay the costs of this proceeding.