Best v. City of Birmingham

• Decision Date: 15 January 1918
• Docket Number: 6 Div. 312
• Parties: BEST v. CITY OF BIRMINGHAM. [*]
• Court: Alabama Court of Appeals

78 So. 100

16 Ala.App. 353

BEST v. CITY OF BIRMINGHAM. ^[*]

6 Div. 312

Court of Appeals of Alabama

January 15, 1918

Rehearing Denied Feb. 26, 1918

Appeal from Criminal Court, Jefferson County; Wm.E. Fort, Judge.

Frank F. Best was convicted of violating a municipal ordinance, and he appeals. Reversed and rendered.

Horace C. Wilkinson and Joseph Embry, both of Birmingham, for appellant.

M.M Ullman and W.H. Sadler, Jr., both of Birmingham, for appellee.

BRICKEN J.

The defendant was tried and convicted of violating Ordinance No 405C of the city of Birmingham, which is as follows:

"An Ordinance to Levy a Street Tax.

"Be it ordained by the commission of the city of Birmingham as follows:

"Sec. 1. That every male inhabitant of the city of Birmingham between the ages of 21 and 45 years shall, on or before the 1st day of August, 1916, pay to the city comptroller, for the use of the city of Birmingham, street tax for the remainder of the year 1916, of $2.50: Provided, that any person liable for a street tax may, in lieu of said tax, work three days on the public streets of the city of Birmingham, under the direction of the street commissioner, by September 1, 1916.

"Sec. 2. Be it further ordained that every male inhabitant of the city of Birmingham, between the ages of 21 and 45 years, shall, on or before the 1st day of March, 1917, and every year thereafter, pay to the city comptroller for the use of the city of Birmingham a street tax of $5 per annum: Provided, that any person liable for a street tax may, in lieu of said tax, work six days on the public streets of the city of Birmingham, under the direction of the street commissioner, by March 1st of each year.

"Sec. 3. Be it further ordained that the funds arising under this ordinance shall be kept in the city treasury as a separate fund to be used exclusively for the support and maintenance of the public streets within the limits of the city of Birmingham.

"Sec. 4. Be it further ordained that any person liable for the street tax under the provisions of this ordinance who fails to pay the same, or discharge the same in labor in the manner prescribed herein, shall, upon conviction, be fined not less than $5, nor more than $10.

"Sec. 5. Be it further ordained that this tax shall not apply to persons residing in the city of Birmingham for a less period than three calendar months."

The defendant urges two propositions as reasons why the judgment appealed from should be reversed, both of which go to the validity of the ordinance above set out, but it is not deemed necessary to treat both of these propositions, as the one dealt with here is conclusive of this appeal.

It is insisted by the defendant that so much of the ordinance as authorizes the imposition of a fine on the person liable to the tax, who fails to pay it, or discharge it in labor, is ultra vires, and therefore the material proposition in the case is: Has the city of Birmingham the authority to provide by ordinance for the imposition of a fine on a person who is subject to street tax, and fails to pay it or discharge it in labor?

Section 47 of the old city charter (Weakley's Local Laws of Jefferson County, p. 47) is as follows:

"Be it further enacted that said board shall have authority to require all male inhabitants who have resided therein for ten days and who are between the ages of eighteen and fifty years to work upon the streets of said city for at least five days in each year under the direction of such officer as the board may appoint: Provided, that each person so required to work may relieve himself from so working by paying into the city treasury a sum to be fixed by the board, not exceeding five dollars; and the money so collected or paid shall be used and applied exclusively to the improvements of the streets: Provided, further, that the inhabitants shall be exempt from working on roads and highways outside the limits of said city."

Section 1336 of the Municipal Code, which is a part of the present charter of the city of Birmingham, is as follows:

"Roads; Exemption of Inhabitants from Working: The inhabitants of any municipality shall be exempt from working on the highways or roads outside the limits thereof, and may be required, for the support of the streets within the limits, to pay a street tax of not exceeding five dollars per year."

It is contended by the appellant that section 1336 of the Code of 1907 supersedes section 47 of the old city charter, and that section 1336 is the exclusive law on the subject relating to street tax. An examination of the two sections shows that there is a marked difference between them, viz.: Under section 47 of the old city charter, the city was authorized to require its male inhabitants to work the streets, and was required by law to accept a moneyed commutation in lieu thereof. Under section 1336 of the Code, the city is not authorized to require its male inhabitants to perform labor; but, to the contrary, is only authorized to levy a tax of a specified sum, and is not authorized or required to accept any commutation in lieu of the moneyed tax which the statute purports to authorize it to levy.

"It is an old and well-defined rule of statutory construction that a subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate as a repeal of the former." Colvin v. Ward, 189 Ala. 198, 66 So. 98; Lemay v. Walker, 62 Ala. 39-40; Ogbourne v. Ogbourne's Adm'r, 60 Ala. 616; Scott v. Simons, 70 Ala. 352-356; Prowell v. State ex rel. Hasty, 142 Ala. 80, 39 So. 164; Fulton v. State, 171 Ala. 572, 54 So. 688.

Section 1336 of the Code is a complete revision of that particular subject (street tax), and we are of the opinion that section 47 of the old charter was repealed by section 1336 of the Code. Colvin v. Ward, supra; Baader v. Cullman, 115 Ala. 539, 22 So. 19.

It is well settled that the requisition of labor for working the public highway, though commutable in money, is the exaction of a public duty, and is not taxation. Butler v. Perry, 240 U.S. 328, 36 Sup.Ct. 258, 60 L.Ed. 672. But the appellant contends the reverse of the proposition, to wit, a levy of money for application to the public highway is not the exaction of a public duty, but is taxation, even though labor is ultimately accepted in lieu of the money primarily required. Appellant's contention has been approved by the Supreme Court of Alabama, in the case of Toone v. State, 178 Ala. 74, 59 So. 666, 42 L.R.A. (N.S.) 1045, in which the court said:

"The books have been examined in vain for an authority which will authorize the exaction from a citizen of the contribution of his property for public service, under the theory that it is his duty as a citizen to so contribute."

In this case, the thing primarily required was the use of a citizen's mules (instead of his money) on the public road, and it was held that the requisition of mules for road duty was a tax, even though the owner of the stock was permitted to pay a fixed sum in lieu of furnishing his mules for work on the highway. There is no difference in principle between the requisition of mules and money. Each are property. In addition to this, the statute (section 1336) speaks of this assessment as a street tax. It appears in the Municipal Code, under the subject of taxation, and the ordinance requires a citizen to pay a street tax. We therefore conclude that the burden imposed by the ordinance is a tax.

Statutes authorizing the levy of taxes are to be strictly construed; they are not to be extended by implication, nor is their operation to be enlarged so as to embrace matters not specifically pointed out, though standing upon a close analogy. Lott v. Ross & Co., 38 Ala. 160; U.S. v. Wigglesworth, 28 Fed.Cas. 596 (Story, J.); Cooley on Taxation, pp. 465-468. In fact, it has been said that a citizen cannot be subjected to such burdens without clear warrant of the law. People v. Sherwood, 113 N.Y. 174, 21 N.E. 87, 3 L.R.A. 464.

With these well-established rules of construction applied to section 1336 of the Code, it is obvious that said section does not authorize the city to require a citizen to work on the streets. Neither does it authorize the city to punish him for his failure to do so. It likewise provides no remedy for the collection of the tax authorized to be levied. The extent of the authority therein conferred is to levy a tax of $5 per year. Municipal corporations have no implied power, but only such power as has been expressly granted to them. Boyd v. Selma, 96 Ala. 144, 11 So. 393, 16 L.R.A. 729; Mobile & Spring Hill R.R. Co. v. Kennerly, 74 Ala. 566-574.

It is further well settled that the right to require the payment of a tax does not carry with it the power to penalize a party in default, and it is laid down by eminent authority that a municipality cannot prescribe a penalty for neglect to pay taxes, unless it is expressly authorized to do so. Perry County v. Selma R.R., 65 Ala. 391; (Dillon, Mun.Cor. (5th Ed.) § 1417; San Antonio v. Raley (Tex.) 32 S.W.

180; Butler's Appeal, 73 Pa. 448; Ham v. Miller, 20 Iowa, 450; Municipality No. 1 v. Pance, 6 La.Ann. 515.

In the case of Cooper v. City of Savannah, 4 Ga. 73, it appears that the city of Savannah levied a tax of $100 on each free person of color who moved into the city, and provided by ordinance for a fine of $100 and a jail sentence for any person liable for tax who failed to pay it. A delinquent taxpayer was arrested and convicted, and on a petition for a writ of habeas corpus the court said:

"The right of the city authorities to impose a tax upon all free persons of color within the corporate limits is recognized. But if the

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