Boyd v. City of Selma

• Decision Date: 22 June 1892
• Parties: BOYD v. CITY OF SELMA ET AL.
• Court: Alabama Supreme Court

11 So. 393

96 Ala. 144

BOYD v. CITY OF SELMA ET AL.

Supreme Court of Alabama

June 22, 1892

Appeal from chancery court, Dallas county; WILLIAM H. TAYLOE Chancellor.

Bill by William E. Boyd against the city of Selma and A. J. Goodwin tax collector, to restrain the collection of a tax. There was a demurrer to the bill, which was sustained, and complainant appeals. Affirmed.

Satterfield & Young, for appellant.

J W. Mabry, for appellees.

THORINGTON J.

Appellant filed his bill of complaint in the chancery court of Dallas county, averring the following state of facts: Appellee Selma is a municipality incorporated under the laws of this state by that name, and among other powers conferred on it by its charter is the following: "That the mayor and councilmen of said Selma shall have the power to levy taxes on real and personal property, capital employed in any business carried on in said city," etc. Since 1884 the said city has had an ordinance in operation and effect authorizing and providing for the taxation of "all moneys loaned, and their value, after deducting the indebtedness of the taxpayer." On the 1st day of May, 1890, which was the beginning of the city tax year for 1890-91, appellant, who resides in said city, duly returned his list of property taxable by said city to the city assessor, showing real property to the amount of $3,000 in value, and personal property to the value of $533, of which personal property $200 was exempt by law from taxation, and which exemption was so claimed on said list. After said list was so returned the assessor, without appellant's knowledge, added thereto, under the head of "All moneys loaned and solvent credits, or credits of value, and their value, after deducting the indebtedness of the taxpayer," an item of $25,262, which is stated by the assessor in writing on said list to have been "added from information from county assessor's book," which item had been assessed to appellant for state taxation in Dallas county for the pending year. Said sum represented negotiable promissory notes, for so much money loaned by appellant, payable to him or his order in Birmingham, Ala., and are secured by mortgages on real property in said last-named city. The makers of said notes all reside in Birmingham, and the notes themselves, since March, 1890, have been and now are in said city, in the hands of appellant's agent there, for collection of interest and the re-investment thereof, with the exception of one note for $100, which is in appellant's possession in Selma. Appellant, before his bill was filed, applied to the mayor and councilmen of Selma to cancel the said item of $25,262, so added to his tax list by the assessor, but, after hearing on his petition, they refused so to do. It is also alleged that no appeal is provided by law from their decision in the matter, and that the remedy by certiorari would not afford relief, for the reason that the facts outside the record could not be shown in that proceeding, and that appellant is therefore without remedy, except in a court of equity; that said mayor and councilmen levied a tax of 1 1/2 per centum on the property assessed to appellant, making the aggregate amount of the tax claimed by said city of Selma from appellant $428.93. The bill shows a proper tender of the amount legally due, according to appellant's theory of the case, including the $100 note in Salma, and contains an offer to do equity and abide the decree of the court. The charter of Selma gives to tax assessments made by the mayor and councilmen the force and effect of a judgment at law against the taxpayer, and makes the same a preferred lien from its date over all other incumbrances on all his property, real and personal, within the city, or that may be brought to the city. Appellant is seised and possessed of real property in said city to the value of $3,000, and appellee, Goodwin, as tax collector for said city, is about to proceed to sell appellant's said real property for the payment of said municipal tax, including that assessed on said item of $25,262. It is averred that said levy and assessment cast a cloud on the title of appellant to said real property, and that the collector is about to cast a further cloud thereon by proceeding to sell as aforesaid, and that relief should also be granted to avoid a multiplicity of suits. The bill prays for an injunction to restrain the collection of the alleged illegal portion of the tax, and that the assessment made by the assessor on said solvent credits may be canceled as a cloud on appellant's title. To this bill appellees demurred, the demurrer was sustained by the chancery court, and, appellant failing to amend his bill, it was dismissed. We have been particular in thus setting out the facts averred by the bill for the reason that the case involves, among others, an important principle of municipal as well as general taxation.

The two controlling questions are whether the bill makes out a case coming within some ground of equitable jurisdiction connected with the alleged illegality of the tax, and whether solvent credits or negotiable promissory notes are taxable at the domicile of the owner, or whether the situs of such property, and not the domicile of the owner, determines the liability to taxation, and these questions we will consider in the inverse order to that in which they are above stated. Preliminary to these two questions, however, we will notice the proposition argued by appellant's counsel, that negotiable promissory notes are not embraced in the term "personal property," found in section 27 of the charter of Selma, above quoted. Acts 1882-83, p. 414, § 27. "It is a principle universally declared and admitted that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred." Dill. Mun. Corp. (4th Ed.) § 763. Or, as sometimes more tersely stated, "municipal corporations have no implied powers of taxation; they have only such as are granted." It is also a clearly settled proposition that, in the absence of constitutional restraint, "the general assembly may delegate to municipal corporations the power of taxation of persons or property in such manner and to such extent as it may deem expedient, but it cannot confer power which it does not itself possess." Ex parte City Council, 64 Ala. 463. The state has power to tax, and does tax, solvent credits, including negotiable promissory notes. It appears from an inspection of the charter of Selma (Acts 1882-83, p. 396) that the power is not conferred on said city to tax such property eo nomine, but the power is given in express terms to tax real and personal property; and, if the term "personal property" can be said to embrace choses in action, then it is undeniable that the charter confers upon the city express power to tax that species of property. This is as truly axiomatic as that the whole includes all its parts. In its general or ordinary significance, the term "personal property" embraces all objects and rights which are capable of ownership, except freehold estates in land, and incorporeal hereditaments issuing thereout, or exercisable within the same." 18 Amer. & Eng. Enc. Law, p. 408. And, when used in statutes authorizing the imposition of taxes, the word "property," without the qualifying term "personal," will be held without further signification to include solvent credits. 1 Desty, Tax'n, pp. 318, 319; Cooley, Tax'n, p. 372; Association v. Austin, 46 Cal. 415; People v. Park, 23 Cal. 138; Louisville v. Henning, 1 Bush, 381; Catlin v. Hull, 21 Vt. 152. So in this state the words "personal property," employed in exemption statutes, have been construed to include money, choses in action, and even a claim for damages resulting from negligence. Borden v. Bradshaw, 68 Ala. 363; Darden v. Reese, 62 Ala. 311; Williamson v. Harris, 57 Ala. 40.

In the definition of terms given in the Code, § 2, subd. 3, the words "personal property" include "money goods, chattels, things in action, and evidences of debt," etc.; but that definition only applies to the words "personal property," as used in the Code, and is not a general, authoritative definition, attaching to said terms, as found in all legislative enactments of this state, general and special. Whatever effect this section may have upon general enactments since the Code in which these words occur, when found in special statutes enacted either before or since the Code, they have the usual and ordinary meaning attaching thereto, unless otherwise limited or qualified by the context. In the section of the charter of Selma herein quoted we do not find in the context any associated words, which give to the term "personal property" a narrower or different meaning from that found in the authorities we have cited above. True, some of the items of personal property specifically mentioned in the section would, according to the general definition given in the citations, fall within the generic term, and some would not; but the former appear to have been particularized ex industria, or by way of precaution, and not with the intent to limit the preceding general words. We think it clear that the term "personal property," as used in section 27 of the charter of said city, includes solvent credits and choses in action, and consequently that such property is liable to taxation by said city in the manner and to the extent provided by its charter. Practically the same question was settled by this court in the case of St. John Powers & Co. v. Mayor, etc., 21 Ala. 224, where it was held that the charter of that city, which authorized it to tax "real and personal estate within the city," included the power to tax bills of exchange, notes, etc....