Capital City Water Co. v. Board of Revenue of Montgomery County

• Decision Date: 01 May 1897
• Citation: 23 So. 970,117 Ala. 303
• Parties: CAPITAL CITY WATER CO. v. BOARD OF REVENUE OF MONTGOMERY COUNTY.
• Court: Alabama Supreme Court

23 So. 970

117 Ala. 303

CAPITAL CITY WATER CO. v. BOARD OF REVENUE OF MONTGOMERY COUNTY.

Supreme Court of Alabama

May 1, 1897 ^[1]

Certiorari by the Capital City Water Company against board of revenue of Montgomery county to review an assessment. From a judgment for defendant, plaintiff appeals. Affirmed.

The tax assessor of Montgomery county made an assessment against the appellant, the Capital City Water Company, on account of its gross income during the year of 1890, which said income amounted to the sum of $22,295.22, at which amount the assessment was fixed. The Capital City Water Company then filed its petition addressed to the board of revenue of Montgomery county, and prayed that said board of revenue vacate and set aside said assessment, on the ground that such assessment was illegal and void. The basis of this contention was that subdivision 5, § 454, Code 1886, under which said tax was levied, was invalid and void. The board of revenue after hearing the petition, refused to set aside the assessment; and thereupon the Capital City Water Company carried said cause to the circuit court of Montgomery county by a writ of certiorari. It is deemed unnecessary to set out the record and proceedings in extenso. The opinion states the facts sufficiently for a full understanding of the decision on this appeal.

In the circuit court the cause was heard by the court without the intervention of a jury; and the circuit court affirmed the decision of the board of revenue, and refused to set aside and vacate the assessment as made by the tax assessor. From this judgment of the circuit court, the Capital City Water Company prosecutes the present appeal, and assigns the rendition thereof as error.

Thos G. & Chas. P. Jones, for appellant.

John G Finley, for appellee.

HARALSON J.

It is stated in the abstract filed in this case, sustained by the petition of the board of revenue as set out therein, that the sole question in the case is, "whether the assessment on the gross income of the said Capital City Water Company was legal, and whether or not subdivision 5 of section 454 of the Code of 1886, under which said tax was levied, is valid." The supposed illegality of the assessment as made is based on the alleged unconstitutionality of the statute under which it was levied. The language of the petition of appellant to said board is: "Respondent avers, that it has been advised, and believes, and upon such information and belief, states that said assessment is illegal; the statute under which it is levied being in violation of the constitution of Alabama."

After the case was carried by certiorari to the circuit court, as is stated in the abstract, "it was there shown, that during the year 1890, said Capital City Water Company received the sum of $22,295.22 as its gross income from the operation of its works during the year 1890."

The board of revenue, whose decision was sought to be reviewed on certiorari in the circuit court, had assessed the appellant company on said sum as its gross receipts for the year 1890, and the circuit court, whose decision is here sought to be reviewed, affirmed the decision of the board.

It is a well-accepted principle of law, that the state constitutions are not in their nature enabling acts, to which class the constitution of the United States belongs, but are limitations on legislative power, and that the legislature may pass any law not in conflict with the state or federal constitution, the rule being, that "the federal government can do nothing but what is authorized expressly or by clear implication, while that of the state can do whatever is not prohibited." Dorman v. State, 34 Ala. 230; Davis v. State, 68 Ala. 62; Moog v. Randolph, 77 Ala. 606; Cooley, Const. Lim. 88, 89; 3 Am. & Eng. Enc. Law, 689.

The provision appearing in the earlier constitutions of this state on the subject of taxation was simply: "All lands liable to taxation in this state shall be taxed in proportion to their value." The taxing power was not defined qualified or restrained by any other provision than by this simple declaration. On personal property, either specific or ad valorem taxes could be imposed, and on other subjects of taxation they could be laid, as the legislature deemed best. This unrestrained power of the state, except as to land, to levy taxes, found justification as was held, in the principle, that taxes being regarded as the contributions of the people for the support of the state, ought to be assessed on the subjects of taxation as the people by their representatives designate, and that the legislature may be trusted to do no more in this regard than an economical and just administration of the state government would require. Insurance Co. v. Lott, 54 Ala. 506. For the purpose of restraining an abuse of this very general power to tax, the constitution of 1868 substituted for the one theretofore prevailing, another restraining provision, that "all taxes levied on property in this state shall be assessed in exact proportion to the value of such property." Const. 1868, art. 9, § 1; Mayor, etc., of Mobile v. Stonewall Ins. Co., 53 Ala. 576. To place still further restraints upon the taxing power, as experience had suggested to be wise, the framers of the constitution of 1875, retaining the same provision above quoted in the constitution of 1868, added the other provisions therein appearing on the subject (article 11, §§ 4-6) that "the general assembly shall not have the power to levy, in any one year, a greater rate of taxation than three-fourths of one per centum on the value of the taxable property within the state"; that "no county in this state shall be authorized to levy a larger rate of taxation, in any one year, on the value of the taxable property therein, than one-half of one per cent.," etc.; and that "the property of private corporations, associations and individuals of this state, shall be forever taxed at the same rate," etc. In the Code of 1886 (section 453) the legislature, in 13 subdivisions, attempted to specify with great particularity certain subjects and rates of taxation thereon. In those subdivisions is specified all the property, real and personal, that, as it occurred to the lawmakers, was necessary to be itemized; and to cover any property not mentioned, the thirteenth subdivision provided for a levy of taxes on "all other property, real and personal, not otherwise specified herein." It is noticeable, that in the schedule of taxable property included in this section, there is embraced no provision for taxing the gross receipts or business occupation of companies of the class of the appellant company, unless they had money hoarded, whether in the custody of the owner, or on deposit in bank or elsewhere, not including money on deposit by persons engaged in any regular business for use in such business. Subdivision 6. It is not pretended, the appellant company had been assessed on any such moneys. For the sake of perfecting our taxing system, new revenue laws containing much of former systems which experience had shown to be wise to retain, have been from time to time enacted. In these, for like reasons, other provisions have been discarded, and still other new ones added. Under the assessment law as found in the Code of 1876, a provision is found in section 362, subd. 6, that "all salaries, gains, incomes and profits for the preceding year, shall be subject to taxation." In 1881, this subdivision was amended, so as to read, "All salaries, gains, incomes and profits for the preceding year, in excess of the actual expenses incident to the office, business or pursuit out of which such salary, gains, incomes and profits are derived, and the expenses of living during the year, to the extent of eight hundred dollars" (Laws 1880-81, p. 4), and these were required to be listed for taxation. In the Code of 1886, this provision of former statutes for the imposition of a tax on salaries, gains, incomes and profits is omitted,-a fact...