IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
THE CITY OF MEMPHIS v. SHELBY COUNTY ELECTION
COMMISSION, ET AL.
Appeal from the Chancery Court of Shelby County
No. CH-04-1736-II Arnold B. Goldin, Judge
No. W2004-02182-SC-RDM-CV - Filed September 15, 2004
In this expedited appeal, this Court is asked to decide whether the Shelby County Election
Commission exceeded its authority by refusing to place Referendum Ordinance No. 5072 on the
November 2, 2004, ballot based upon the State Election Coordinator’s opinion that the Ordinance
is unconstitutional. We hold that the Shelby County Election Commission exceeded its authority
in refusing to place the measure on the ballot. Accordingly, the judgment of the trial court is
reversed, and the Commission is hereby ordered to include Referendum Ordinance No. 5072 on the
November 2, 2004, ballot.
Tenn. Code Ann. § 16-3-201; Judgment of the Trial Court Reversed
FRANK F. DROWOTA , III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
Allan J. Wade, Lori Hackleman Patterson, Brandy S. Parrish, Sara L. Hall, Memphis, Tennessee,
for the appellant, The City of Memphis.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Ann
Louise Vix, Senior Counsel, Charles L. Lewis, Deputy Attorney General, Nashville, Tennessee,
for the appellee, Shelby County Election Commission, Gregory M. Duckett, Richard J. Holden
and Maura Black Sullivan, Members.
OPINION
I. Motion to Assume Jurisdiction
On September 10, 2004, the City of Memphis (“City”) filed a motion pursuant to Tennessee
Code Annotated section 16-3-201 requesting that this Court assume jurisdiction of this appeal and
render an expedited decision. The City asserted that this is a case of unusual public importance
involving constitutional separation of powers issues. The City maintained that expediting the appeal
is necessary to enable the Shelby County Election Commission to prepare and to distribute to
military personnel by September 18, 2004, the ballots for the November 2, 2004, general election.
This Court immediately ordered the parties to submit briefs addressing the following issues: (1)
whether the Shelby County Election Commission and Commission Members (“Commission”) had
the authority to refuse to place Referendum Ordinance No. 5072 on the November 2, 2004, ballot
because they believed it to be unconstitutional; and (2) whether Referendum Ordinance No. 5072
is unconstitutional.
Upon due consideration of the well-written and thorough briefs, prepared on short notice,1
this Court finds that the City's motion is well taken. We agree with the City that this is a case of
unusual public importance, presenting a special need for expedited decision and involving issues of
constitutional law. See Tenn. Code Ann. § 16-3-201 (Supp. 2003). Accordingly, we hereby grant
the City’s motion, assume jurisdiction of this appeal, and, as explained below, reverse the judgment
of the trial court.
II. Factual and Procedural Background
Petitioner, the City, is a home rule municipality duly chartered under Article XI, section 9
of the Tennessee Constitution. The Commission is responsible for administering public elections
in Shelby County and in the City. On August 17, 2004, the Memphis City Council passed on third
and final reading Referendum Ordinance No. 5072. If approved by the voters, this measure would
amend the City’s Charter by adding the following provision:
The Council of the City of Memphis is authorized by Ordinance to authorize the City
of Memphis to levy and collect an additional privilege tax and/or fee on the privilege
of engaging in certain vocations, occupations, callings and employment related
activities within the City and to authorize the use of revenue derived therefrom for
budget expenditures for fire, police and for corresponding reductions of ad valorem
taxes for expenditures made from such revenues.
The City’s Comptroller delivered to the Commission a copy of Referendum Ordinance No.
5072, along with a suggested referendum question (collectively “Ordinance”), for inclusion on the
November 2, 2004, ballot. There is apparently no dispute that the Ordinance was duly enacted by
the Memphis City Council, signed by the Mayor, and properly and timely submitted to the
Commission for inclusion on the ballot. However, on August 26, 2004, the Commission refused
1
This Court’s Order of Friday, September 10, 2004, allowed the City until Monday, September 13, 2004,
and the Commission until Tuesday, September 14, 2004, in which to brief this cause.
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to place the Ordinance on the ballot. In doing so, the Commission relied upon an August 25, 2004,
letter from Brook Thompson, Tennessee Coordinator of Elections (“Coordinator”). In this letter, the
Coordinator declared that he would not approve any ballot containing the Ordinance and stated that
a privilege/payroll tax, to which the Ordinance ultimately speaks, “is unconstitutional unless and
until the General Assembly authorizes cities to impose such a tax.”
On August 27, 2004, the City filed a “petition for writ of mandamus, for injunctive relief, and
for a declaratory judgment,” challenging the Commission’s refusal to place the Ordinance on the
ballot. A hearing was held on September 7, 2004, before Chancellor Arnold Goldin. Although
characterizing the duties of the Commission and the Coordinator as ministerial in nature, the
Chancellor concluded that these officials had the authority to refuse to place the Ordinance on the
ballot. The Chancellor further found that the Ordinance would be unconstitutional because it would
unlawfully increase the taxing power of the City in violation of Article XI, section 9 of the Tennessee
Constitution.2 The City filed a notice of appeal on September 8, 2004, and, two days later, filed a
motion asking this Court to assume jurisdiction of the appeal pursuant to Tennessee Code Annotated
section 16-3-201. We granted the City’s motion.
III. Authority of the Commission
The City argues that the Commission and the Coordinator are ministerial officials who had
no authority to refuse to place the Ordinance on the ballot because they believed it to be
unconstitutional. In support of its argument, the City points to several statutes, discussed hereinafter,
delineating the duties of the Commission, as well as to several statutes setting forth the duties of the
Coordinator whose opinion the Commission relied upon in refusing to place the Ordinance on the
ballot. The Commission responds that it has the duty to review proposed referendum measures and
to determine initially whether such measures comply with state statutes and with the state
constitution.
The City correctly points out that the Coordinator and the Commission are ministerial
officers. Shelby County Election Comm’n v. Turner, 755 S.W.2d 774, 776 (Tenn. 1988) (“[T]he
Election Commission has only ministerial duties.”); Peeler v. State ex rel. Beaseley, 231 S.W.2d 321,
323 (Tenn. 1950) (holding that the duties of county election commissions are ministerial); Curtis v.
State, 43 S.W.2d 391 (Tenn. 1931); Taylor v. Carr, 141 S. W. 745, 750 (Tenn. 1911) (holding that
“the duties of commissioners of election are only ministerial”); see State ex rel. Tidwell v. Morrison,
274 S. W. 551, 552 (Tenn. 1924). The trial court in this case accurately characterized the
Commission’s duties as ministerial. The Commission and the Coordinator respectively perform
important functions vital to the maintenance and advancement of our political system. Nonetheless,
as ministerial officers, the Commission and the Coordinator have limited discretion.
Black’s Law Dictionary defines a “ministerial officer” as “[o]ne who performs specified legal
2
Article XI, section 9 of Tennessee’s Constitution declares that although home rule municipalities, such as
the City, ha ve broad pow ers to amend their charters by referendum, "the po wer of taxation of such municipality shall
not be enlarged or increased except by general act of the General Assembly."
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duties when the appropriate conditions have been met, but who does not exercise personal judgment
or discretion in performing those duties.” Black’s Law Dictionary 1113 (7th ed. 1999). A “strictly
ministerial duty” is defined as: “A duty that is absolute and imperative, requiring neither the exercise
of official discretion nor judgment.” Id. at 522.3 These definitions illustrate how, as ministerial
officers performing ministerial acts, the Commission and the Coordinator must implement the
election laws, not determine the substantive constitutionality of ballot measures.
Without question, the Commission and the Coordinator have certain statutorily prescribed
ministerial duties that allow – indeed require – them to do such things as examine ballot initiatives
to determine whether signature requirements are met, determine whether submissions are timely, and
determine whether candidates have properly qualified to be placed on the ballot. See Tenn. Code
Ann. § 2-1-101 through -216 (2003) et seq. However, these statutes do not require or even permit
the Commission to refuse to include a referendum question on the ballot because the Commission
believes the question to be substantively unconstitutional. See Tenn. Code Ann. §§ 2-12-101
through 2-12-216 (delineating the duties of the Commission). The Commission contends that it has
the power and duty to make an “initial determination” whether the law authorizes the acts it is
required to perform. This contention is true with respect to the Commission’s performance of its
ministerial duties. However, it is inaccurate to say that the Commission has the power and duty to
perform an initial or cursory review of the substantive constitutionality of measures to be placed on
the ballot for referendum. Determining the substantive constitutionality of such measures is a
function reserved for the judicial branch of government.
Furthermore, the Coordinator, an appointed, ministerial official, also lacks the statutory
authority to forbid the inclusion of a referendum question based upon the Coordinator’s opinion that
the measure is substantively unconstitutional. The Coordinator’s statutory duty to approve the “form
of the ballot” does not provide authority to determine the substantive constitutionality of referendum
questions, like the Ordinance at issue in this case. The “forms of ballots on voting machines” and
the “form of paper ballots” are prescribed by statute. See Tenn. Code Ann. §§ 2-5-206, -207. These
statutes describe the proper “form” of the ballot in detail, including, for example, the color of ink and
the proper placement of certain titles and candidate names. See id. at §§ -206, -207 However, these
statutes do not address the substance of ballot measures.
Finally, Tennessee Code Annotated section 2-11-202 does not provide the Coordinator with
authority to exclude the Ordinance based upon the Coordinator’s opinion that the Ordinance is
substantively unconstitutional. Section 2-11-202 provides in relevant part as follows:
(a) The coordinator of elections shall:
(1) Generally supervise all elections;
3
The City cites a prior edition of B lack’s Law D ictionary which defines ministerial official as “[o]ne who se
duties are purely ministerial, as distinguished from executive, legislative, or judicial functions, requiring obedience
to the mandates of superiors and not involving the exercise of judgment or discretion.” Black’s Law Dictionary 996
(6 th ed. 1990). That same edition defines a “ministerial act” as “[t]hat which is done under the authority of a superior
. . . . That which involves obedience to instructions, but demands no special discretion, judgment, or skill.” Id.
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(2) Prepare instructions for the conduct of registration;
(3) Advise election commissions, primary boards, and
administrators of elections as to the proper methods of
performing their duties;
(4) Authoritatively interpret the election laws for all
persons administering them; . . . .
Tenn. Code Ann. § 2-11-202 (2003). Although the Coordinator must “authoritatively interpret the
election laws for all persons administering them,” this statute does not permit or instruct the
Coordinator to provide an authoritative interpretation as to whether a municipal ordinance placing
a question on the ballot violates the Tennessee Constitution.4
Indeed, any statute purporting to grant the Coordinator or the Commission such broad
interpretive authority would run afoul of the principle of separation of powers embodied in the
Tennessee Constitution, Article II, sections 1 and 2.5 This Court has explained:
The powers of government, divided into the legislative, executive,
and judicial branches, are separate and divisible. The legislative
branch has the authority to make, alter, and repeal the law; the
executive branch administers and enforces the law; and the judicial
branch has the authority to interpret and apply the law. Since the
United States Supreme Court decision in Marbury v. Madison, it has
been the sole obligation of the judiciary to interpret the law and
4
In his August 25, 2004, letter, the Coordinator stated that he would “not approve any ballot” that contained
the Ordinance. The City correctly points out that, although County Election Commissions must submit for the
Coordinator’s approval a sample ballot of “candidates” for public offices, the plain language of Tennessee Code
Annotated sections 2-5-206(c) and 2-5-207(e) does not appear to require County Election Commissions to submit for
the Co ordinator’s approval a samp le ballo t of referendum questions. See Tenn. Cod e Ann. § 2-5-206(c) (providing
that the election commission “shall prepare a sample ballot of all candidates and mail this sample ballot to the
coo rdinator of elections for ap proval”); T enn. C ode Ann. § 2-5-207(e) (providing that the election com mission “shall
prepare a sample ballot of all candidates listed in § 2-13-202 and shall mail this sample ballot to the coordinator of
elections for approval”). The Commission disputes the City’s assertion and points out that sections -206(c) and -
207(e) clearly state that “[n]o ballot shall be printed or funds expended therefor by any county until [the
Coordinator’s] approval has been granted.” Nonetheless, this statute does not define which portions of the ballot the
Coordinator must approve prior to printing. As the City asserts, the plain language of the statute appears to require
Coordinator “approval” of the sample ballot for “candidates” rather than for referendum questions. Regardless, we
need not de cide the scope of the Co ordinator’s approval authority in this app eal.
5
Article II, section 1 provides: “The powers of the Government shall be divided into three distinct
departments: the Legislative, Executive, and Judicial.” Furthermore, Tennessee Article II, section 2 states: “No
perso n or p erson s belonging to one o f these departments shall exercise any of the powers pro perly b elonging to
either of the others, except in the cases he rein directed or permitted.” Te nn. Co nst. art. II, §§ 1, 2.
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determine the constitutionality of actions taken by the other two
branches of government. The Tennessee Constitution [Art. II, § 2]
forbids an encroachment by one department upon the powers or
functions of another. Thus, a legislative action vesting executive
branch agencies with the authority to determine the constitutionality
of statutes would violate the separation of powers doctrine.
Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995) (internal citations
omitted) (emphasis added).
Reduced to its essence, the City’s assertion is that, regardless of whether the Ordinance
unconstitutionally enlarges the City’s taxing power, the Commission and the Coordinator clearly
violated this constitutional doctrine of separation of powers. The City maintains that the
Commission and the Coordinator usurped the judiciary’s authority to determine the constitutionality
of laws, including municipal ordinances, and encroached upon the Memphis City Council’s
legislative authority to enact and submit laws to the electorate. The Commission asserts that it had
the authority – indeed the duty – to review the Ordinance to determine whether it violated Article
XI, section 9 by enlarging the City's taxing authority.
After carefully considering these arguments, we agree with the City that the Coordinator and
the Commission violated the constitutional principle of separation of powers by refusing to place the
Ordinance on the ballot. With regard to referendum charter amendment ordinances, like the
Ordinance at issue in this case, Article XI, section 9 of the Tennessee Constitution clearly states:
It shall be the duty of the legislative body of such municipality to publish any
proposal so made and to submit the same to its qualified voters at the first general
state election which shall be held at least sixty (60) days after such publication and
such proposal shall become effective sixty (60) days after approval by a majority of
the qualified voters thereon.
By refusing to include the Ordinance, the Coordinator and the Commission thwarted the Memphis
City Council’s constitutional duty to submit the Ordinance to the qualified voters at the first general
state election.
Furthermore, the Coordinator and the Commission usurped the power of the judiciary to
determine the substantive constitutionality of duly enacted laws. We have found no Tennessee
authority, and none has been cited to us, wherein executive or legislative branch officials are
permitted to determine the substantive constitutionality of duly enacted, presumptively valid
ordinances. Cf. Kirk v. Olgiati, 308 S.W.2d 471, 473 (Tenn. 1957) (“[T]he necessity and
advisability of a City ordinance is for the legislative power to determine and the presumption is that
said ordinance is valid and constitutional.”) Indeed, as previously explained, ministerial officials
are prohibited from exercising this uniquely judicial function. This Court has emphasized that:
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[t]he general public welfare, and more especially the peace and good order of society,
will not admit of ministerial officers being the judge of the constitutionality of
statutes and ordinances. Their failure and refusal to enforce the law as written, in the
absence of any proper adjudication of unconstitutionality, would be intolerable.
Bricker v. Sims, 259 S.W.2d 661, 664-65 (Tenn. 1953). Here, ministerial officials adjudged the
substantive constitutionality of a duly enacted Ordinance and, based on their judgment, forbade its
inclusion on the ballot. We agree with the City that, in doing so, the Coordinator and the
Commission overstepped their statutory and constitutional authority.6 Accordingly, the trial court's
decision on this issue is reversed.
IV. Constitutionality of the Ordinance
The Commission asserts that the Ordinance is unconstitutional because it “clearly, plainly,
and on its face would expand Memphis’ power of taxation.” The Commission asks this Court not
to require it to place the purportedly invalid Ordinance on the ballot. In so arguing, the Commission
relies upon this Court’s decision in Brown v. State ex rel. Jubilee Shops, Inc., 426 S.W.2d 192
(Tenn. 1968), in which this Court reviewed the constitutional challenge to an ordinance before
ordering the County Election Commission to place it on a referendum ballot.
The City asserts that the constitutionality of the Ordinance is not ripe for judicial
determination. The City maintains that the Commission’s reliance upon Brown is misplaced because
Brown involved a constitutional challenge to the form of the referendum ordinance whereas, in this
case, the Commission challenges the substantive constitutionality of the Ordinance.
Upon due consideration, we agree with the City that a challenge to the substantive
constitutional validity of the Ordinance is not ripe for judicial determination. The City’s voters may
or may not approve the Ordinance. If the Ordinance is approved, the City may or may not adopt a
privilege tax to which the Ordinance speaks. The City may or may not seek approval by the General
Assembly for such a tax, and the General Assembly may or may not approve any such request. In
short, we decline to pass upon the constitutionality of a measure that is not now the law and may
never become the law. For us to do so at this premature stage would violate the established rule that
appellate courts will not render advisory opinions, Leach v. State, 491 S.W.2d 81, 82 (Tenn. 1973);
Banks v. Jenkins, 449 S.W.2d 712, 717 (Tenn. 1969), and will not decide theoretical issues based
on contingencies that may or may not arise. Dorothan v. McMinn County, 213 S.W.2d 173, 178
(Tenn. 1948); United States Fidelity & Guaranty Co. v. Askew, 191 S.W.2d 533, 534 (Tenn. 1946).
Furthermore, we agree with the City that Brown is distinguishable and not controlling. In
6
We realize that the Commission relied upon the advice of the Coordinator, who had relied upon a 1993
Attorney General’s Opinion which had concluded that the City lacked the authority to assess and to enforce a
proposed “Occupational Privilege Tax,” stating in relevant part that “the privilege it purports to tax has not been
declared or defined by state law, and . . . no general authority has been delegated to cities to levy such a tax.” Tenn.
Op. Atty. Gen. No. 93-48. Of course, Attorney General Opinions are not “adjudications.” Bricker, 259 S.W.2d at
665 .
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that case, the constitutional challenge was to the form of the ordinance, not to its substance. The
body of the ordinance was alleged to be broader than its caption in violation of Article II, section 17
of the Tennessee Constitution. Thus, given the challenge to the form of the ordinance, we agreed
that mandamus should not issue until and unless the ordinance was determined to be valid. Brown,
426 S.W.2d at 287. However, Brown did not present the hypothetical, unripe question of whether
the ordinance, if passed, would be unconstitutional. Rather, Brown presented the concrete and ripe
question of whether the ordinance had been passed in the form necessary to legitimately invoke the
referendum process. Generally, pre-election challenges to the substantive constitutional validity of
referendum measures are not ripe for determination by a court, while pre-election challenges to the
form or facial constitutional validity of referendum measures are ripe for judicial scrutiny.7 See
James D. Gordon III & David B. Magleby, Pre-Election Judicial Review of Initiatives and
Referendums, 64 Notre Dame L. Rev. 298, 314 (1989); see also Donovan v. Priest, 931 S.W.2d 119,
122 (Ark. 1996); Burnell v. City of Morgantown, 558 S.E.2d 306, 313-14 (W. Va. 2001) (explaining
and applying this rule). The authority from other jurisdictions upon which the Commission relies
involved pre-election challenges to the form or facial constitutional validity of referendum measures,
rather than pre-election challenges to the substantive constitutional validity of such measures. See
Alaska Conservative Political Action Comm. v. Municipality of Anchorage, 745 P.2d 936, 938
(Alaska 1987) (refusing to require election officials to place on the ballot an initiative that on its face
sought to make an appropriation because the Alaska constitution specifically prohibited making
appropriations by initiative); Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824,
827 (Mo. 1990) (en banc) (considering, in a pre-election challenge, whether a ballot measure violated
a state law requiring that an initiative petition contain no more than one subject and stating that
“[o]ur single function is to ask whether the constitutional requirements and limits of power, as
expressed in the provisions relating to the procedure and form of initiative petitions, have been
regarded”); State ex rel. Hazelwood Yellow Ribbon Comm. v. Klos, 35 S.W.3d 457, 468 (Mo. Ct.
App. 2000) (stating that “modern precedents leave no doubt that Missouri courts indeed recognize
and follow a general rule against pre-election judicial review concerning the substantive legality of
ballot measures”); State ex rel. Childress v. Anderson, 865 S.W.2d 384, 390-91 (Mo. Ct. App. 1993)
(holding a ballot zoning measure invalid because it had not been submitted to the city planning and
zoning commission for examination and recommendation prior to consideration by the city council,
as required by the city charter); State ex rel. Brant v. Beermann, 350 N.W.2d 18, 21 (Neb. 1984)
(stating that “[u]nless the subject of the proposed petition on its face is invalid or unconstitutional,
the Secretary of State cannot pass upon the validity or construction of any proposed law . . .” and that
“[t]he Secretary of State is required to perform promptly all the ministerial duties imposed by law,
except the Secretary of State may determine whether the subject of the petition has the semblance
of a law or whether the subject is legally appropriate for the initiative”); Town of Hilton Head Island
v. Coalition of Expressway Opponents, 415 S.E.2d 801, 806 (S.C. 1992) (refusing, in a pre-election
declaratory judgment action brought by the town and various taxpayers, to require the town to place
7
The caution and restraint which courts typically exercise in reviewing pre-election challenges to the
substantive co nstitutionality of referen dum measures further sup ports this Court’s hold ing that the Commission, a
non-judicial, ministerial body, lacked the authority to undertake a initial determination of the substantive
constitutionality of the Ordinance.
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a facially unconstitutional measure on the referendum ballot); Dixon v. Provo City Council, 363 P.2d
1115, 1116 (Utah 1961) (refusing to compel election authorities to place the ordinance on the ballot
because the proposal which called for the election of “three commissioners and an auditor” was
facially invalid in light of a generally applicable state statute vesting the authority of municipal
government “‘in a board of commissioners, consisting of a mayor and two commissioners, to be
elected at large’”).
Regardless of its assertions to the contrary, the Commission’s challenge is to the substantive
constitutional validity of the Ordinance, rather than merely to the facial or procedural legality of the
measure. This challenge is unlike the challenge in Brown which required this Court merely to
review the ordinance to determine if its body was broader than its caption in violation of Article II,
section 17 of the Tennessee Constitution. Deciding the constitutional challenge in this case would
require not only review of the City’s existing charter to determine how broad the City’s taxing
powers are at present, but also review of the Ordinance to determine whether it would, upon
adoption, actually enlarge or increase the City’s taxing powers in violation of Article XI, section 9.8
In short, the challenge in this case strikes at the substantive constitutional validity of the Ordinance.
Thus, as previously stated, this pre-election challenge simply is not ripe for judicial determination.
V. Conclusion
As explained herein, the City's motion requesting that this Court assume jurisdiction of the
appeal is well taken and is granted. We hold that the Commission exceeded its statutory and
constitutional authority by excluding the Ordinance from the November 2, 2004, ballot. Therefore,
the Commission is hereby ordered to include the Ordinance on the November 2, 2004, ballot. The
substantive constitutionality of the Ordinance, or any law that may eventually result from the
measure, is not now an issue ripe for judicial determination. This opinion is not subject to rehearing
under Tennessee Rule of Appellate Procedure 39, and the Clerk is directed to certify this opinion as
final and to immediately issue the mandate. Costs of this appeal are taxed to the Commission for
which execution may issue if necessary.
FOR THE COURT:
8
As to taxing power, Section 75 6 of the City’s existing charter provides broadly:
The power conferred thus to impose taxes shall apply to every object and subject
of taxation within the corporate limits o f the city of M emp his. Said pow er shall
extend to every species of property and to privileges and wha rfage d ues, and all
other things upon which the legislature or the city has heretofo re laid taxes, rates,
or assessments for the support and maintenance of said government, the object
being to provide for the exercise of the power herein conferred under the
restrictions named as fully as the same could be exercised if the legislature and
not the city were exercising the power.
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____________________________________
FRANK F. DROWOTA III,
CHIEF JUSTICE
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