City of Birmingham v. Klein

• Decision Date: 29 April 1890
• Citation: 89 Ala. 461,7 So. 386
• Parties: MAYOR, ETC., OF BIRMINGHAM v. KLEIN.
• Court: Alabama Supreme Court

7 So. 386

89 Ala. 461

MAYOR, ETC., OF BIRMINGHAM v. KLEIN.

Supreme Court of Alabama

April 29, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This suit was brought by the mayor and aldermen of the city of Birmingham against John Klein, and sought to recover a certain amount assessed against him and his property to pay for curbing and grading a sidewalk in front of his property. The assessment was made under the act approved February 16 1885, and referred to in the opinion. To the complaint as filed by the plaintiff the defendant demurred on the ground that the act was unconstitutional as infringing upon the taxing power as given by the constitution, and that by the act it was sought to tax the property otherwise than "in exact proportion to the value of the property." The demurrer was sustained by the lower court, and the act held to be unconstitutional; and it is now from this ruling of the city court that the present appeal is prosecuted, and the same is assigned as error.

Cabaniss & Weakley and Roquemore, White & McKenzie, for appellant.

Jackson E. Long, for appellee.

MCCLELLAN J.

This appeal involves the constitutionality of an act "to authorize and empower the mayor and aldermen of Birmingham to improve the sidewalks of the city of Birmingham, Alabama, at the cost of parties whose property abuts such sidewalks," approved February 16, 1885, (Sess. Acts 1884-85, pp. 620-622.)

Those sections of the act which are necessary to an understanding of the point under consideration are the following: "Section 1. Be it enacted by the general assembly of Alabama that the mayor and aldermen of Birmingham shall have full power and authority to cause and procure all sidewalks along the streets, avenues, and alleys now established, or hereafter to be established, in said city, to be graded, leveled, curbed, graveled, slagged, cindered, paved, or macadamized, or to be regraded, releveled, recurbed, regraveled, reslagged, recindered, repaved, or remacadamized, in such manner and by such methods and with such material as they may deem best and proper. Sec. 2. Be it further enacted that the said mayor and aldermen of Birmingham shall have the power to have such work done, or cause the same to be done, and the expense thereof shall, after the completion thereof, be by said mayor and aldermen of Birmingham assessed upon the abutting owners of lands or lots lying along and adjacent to the streets or alleys along which such work is done, in proportion to the amount of the benefit accruing to such abutting owner; and all such assessments shall be and constitute a lien upon the lands and lots, respectively, upon which they shall be so assessed."

It thus appears that the purpose of the act, and its effect, if valid, is to authorize local assessments against property to pay for pavements constructed along its front; the cost, as between different owners, to be apportioned with reference to the benefits which are assumed to accrue to them, severally, from the betterment. However the relative benefits are to be determined in a given case, and the sum to be charged on a particular lot ascertained,-whether by reference to the superficial area of the property, or the length of its abutment on the sidewalk, or the uses to which it is devoted, as being to a greater or less extent facilitated by the improvement, or the enhancement thereby of its value compared with other property subject to the gross assessment,-one thing is assured: that the assessment is not made with reference to the value of the property, nor with reference to the limitations on the rate of municipal taxation. It is manifest, therefore, that if the assessment is a "tax," within the meaning of the constitution of Alabama, the statute authorizing it is repugnant to section 1 of article 11 of that instrument, which requires that "all taxes levied on property in this state shall be assessed in exact proportion to the value of such property," and also to section 7 of that article, which provides that "no city, town, or other municipal corporation *** shall levy or collect a larger rate of taxation in any one year, on the property thereof, than one-half of one per centum of the value of such property as assessed for state taxation during the preceding year." There is no longer any doubt but that organic limitations on the taxing power, though expressed in general terms, apply as well to the exercise of that power through the medium of municipal corporations and for municipal purposes as to its exercise directly by the legislature for state purposes; and hence the requirement that all taxes levied on property in this state shall be assessed ad valorem would obtain, with respect to municipal taxation, even in the absence of the other provision quoted, requiring such taxation to be based on the value of property as assessed for state taxation. Mobile v. Insurance Co., 53 Ala. 570. Both the sections noted, therefore, bear upon assessments for municipal purposes; and, if either covers the local assessment under consideration, the law authorizing it must fail. It is a fair, if not necessary, inference that the terms "taxes" and "taxation" have, respectively, the same meaning, wherever found in article 11 of the constitution. The "taxes" which must be laid on a basis of value in section 1 constitute the "taxation" referred to for state purposes in section 4, for county purposes in section 5, and for municipal purposes in section 7; and therefore the only municipal taxation which the constitution requires to be assessed in exact proportion to the value of property is that embraced in the terms of section 7. The most liberal construction of which the language of that section is susceptible will not admit of its application to local assessment to provide for local improvements of sidewalks. By the very terms employed throughout the article, the taxes and taxation, whether state, county, or municipal, are those which make up the general revenues of the one or the other political division, as the case may be,-revenues which come from all the property in the territory, and go to defray general governmental expenditures, as distinguished from special outlays to provide for purely local exigencies. With respect to section 7, this is made to appear with great clearness by its reference to the property to which the limitation it imposes is made to apply, and by its requirement as to the assessment upon which the municipal levy must be predicated. Not only is the levy by any city to be made "on the property thereof," i.e., the whole taxable property thereof, but it must be made on "such property as assessed for state taxation during the preceding year." No such thing is known, or was known when the constitution of 1875 was adopted, or had ever been known, as local assessments of property for state taxation. The state assessment upon which the only municipal levy treated of in the organic law is required to be based

is a general assessment of all property within the corporate limits, and is intended, as the provisos to section 7 show, to provide a fund for the general expenses of the city government. The city's levy there limited must be put upon the whole property taxed by the state, at the valuation fixed by the state's agents. This necessarily and wholly excludes any idea of a local assessment of particular property for any purpose, or to be laid in any manner, under the constitution. Nothing in that instrument refers, or can be made applicable, to such a local charge. If this species of taxation-for it is taxation, and referable to the taxing power, though differing, as we shall see, from the "taxes" and "taxation" regulated in state constitutions-is to be upheld, it must be referred to the sovereign power of the general assembly, which has been curtailed only to the extent of express constitutional limitations. If article 11 contains no inhibition upon the power of the legislature in respect to local assessments by cities and towns, the act under consideration is valid, and the assessment involved here was well laid; for no proposition is now better established in the law than that constitutions are not in the nature of enabling acts, but are limitations upon the otherwise boundless powers of legislatures, or, in other words, that the general assembly is not to look to the organic law to ascertain what is permitted it to do, but only to find what inhibitions are thereby put on its action. Cooley, Const. Lim. 479; Burroughs, Tax'n, § 145; 2 Dill. Mun. Corp. § 737; Irwin v. Mobile, 57 Ala. 6; Dorman v. State, 34 Ala. 231; Hare v. Kennerly, 83 Ala. 608, 3 South. Rep. 683.

Having attempted to demonstrate that the assessment here could not have been made, under the provisions of the constitution either, as it was made, on a basis of benefits, or even on a basis of the value of the particular property, it next becomes necessary to determine whether the organic law is exclusive of all other assessments against property than those of which it treats, in such sort as to amount to a prohibition upon the legislature in respect to an assessment of the class under consideration. It is not questioned but that the power which this statute undertakes to delegate to the municipality of Birmingham is a part of the taxing power inherent in all government, and without limitations other than those expressed in the organic law. It is equally free from doubt that the power of taxation is never to be taken to be surrendered by intendment or implication, and that, without an expressed surrender, clear and explicit in its terms, it must be held to reside undiminished in the legislature. Glasgow v. Rowse, 43 Mo. 479-489; Baltimore v. Railroad Co., 48 Amer. Dec. 531; Battle v. Mobile, 9 Ala. 234, 44 Amer....