City of Ensley v. McWilliams

• Decision Date: 17 May 1906
• Citation: 145 Ala. 159,41 So. 296
• Parties: CITY OF ENSLEY v. MCWILLIAMS.
• Court: Alabama Supreme Court

41 So. 296

145 Ala. 159

CITY OF ENSLEY v. MCWILLIAMS.

Supreme Court of Alabama

May 17, 1906

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"To be officially reported."

Bill by F. W. McWilliams against the city of Ensley. From a decree in favor of complainant, defendant appeals. Reversed, and bill dismissed.

Romaine Boyd, for appellant.

Joel F Webb and Sharpe & Miller, for appellee.

DENSON J.

The city of Ensley was incorporated as a municipal corporation by an act of the General Assembly approved December 10, 1900 and the act amendatory thereto approved March 2, 1901. Acts 1900-01, pp. 247, 1940. By these acts the territory of the city was defined and marked out. The Legislature at the session of 1903 enacted two acts, approved, respectively, on the 28th day of February, 1903, and the 30th day of September, 1903. The first of these acts is entitled "An act to amend section one of an act approved March 2 1901, entitled 'An act to amend section one of an act entitled "An act to establish a new charter for the city of Ensley in Jefferson county, Alabama." ' " Loc. Acts, p. 107. The title of the other is: "An act to alter or rearrange the boundaries of the city of Ensley, Jefferson county, Alabama." Loc. Acts, p. 692. Each of these acts extended the territory of the city, and as extended brought some of the lands of the complainant in the bill in this case within the taxing jurisdiction of the city, thereby making his property subject to taxation by the city. The bill describes the complainant's land that was brought by said acts within the city's jurisdiction and alleges that "the city of Ensley levied a tax on said land for the year 1904, but complainant has never paid said taxes. On July 1, 1905, defendant, through its city tax collector, F. G. Fonville, gave notice in the Ensley Herald that the city clerk of Ensley had issued to him an execution and he had levied on complainant's property as described (in the third paragraph of the bill) for delinquent taxes and costs due the city of Ensley, Ala., for the year 1904, and in the Ensley Herald advertised defendant's said property for sale on the 1st day of August, 1905. It is averred in the bill that the two acts of 1903 were not constitutionally enacted; the defects in this particular being particularly pointed out. In consequence of the averred unconstitutionality of the acts, it is averred in the eighth paragraph of the bill "that the corporate limits of the city of Ensley do not embrace complainant's land; that the exercise of the authority by the city of Ensley which the said acts purport to confer is vexatious to complainant, and if not restrained will deprive him of his just rights and subject him to unjust vexation and injury which is wholly irremedial by a court of law. Complainant further avers that the proceedings instituted by the said city of Ensley to sell complainant's property for the payment of said alleged delinquent taxes are void upon their face, and extrinsic facts are necessary to be proved to show their invalidity and illegality, and a tax deed, if issued by said city of Ensley, would be prima facie evidence of title, resulting in a cloud on complainant's title. Said instruments purporting to extend the corporate limits of the said city of Ensley are not efficacious for this purpose, are null and void, and do not confer on said city of Ensley jurisdiction to make said assessment or sell said lands for the payment of said taxes. If said sale is made of said property as aforesaid, there will be a cloud on complainant's title and he will suffer irreparable injury and will be without redress at law." The prayer of the bill is for an injunction "restraining the city of Ensley, its officers, agents, and employés, any and all of them, from selling or attempting to sell said property of complainant so advertised as aforesaid for taxes so assessed against complainant as aforesaid. Complainant further prays that upon a final hearing of this cause the temporary injunction shall be made perpetual, that the court will set aside and forever annul said assesment as illegal and void, and perpetually enjoin and restrain the said city of Ensley from exercising or attempting to exercise any jurisdiction or authority over the said property of complainant, or dealing with said property as if it were in the corporate limits of the city of Ensley."

A motion to dismiss the bill for want of equity was overruled and this constitutes one ground in the assignment of errors. "It is certainly the general rule that the collection of taxes will not be arrested by injunction. It has its reason in public policy, which cannot lend its sanction to any remedial proceeding which might clog the machinery of civil administration. In addition to illegality or irregularity in the imposition of the taxes or in the process of the collection, to borrow the language of Mr. High, 'there must be some special circumstances attending the threatened injury to distinguish it from a mere trespass, and thus to bring the case within some recognized head of equity jurisprudence; otherwise the person aggrieved will be left to his remedy at law.' " Town of New Decature v. Nelson, 102 Ala. 556, 15 So. 275; Ala. Gold Life Insu. Co. v. Lott, 54 Ala. 499; Elyton Land Co. v. Ayres, 62 Ala. 413; Nat. Com. Bank v. Mayor, 62 Ala. 284, 34 Am. Rep. 15; Mayor v. Baldwin, 57 Ala. 61, 29 Am. Rep. 712; Cooley on Taxation, p. 760. The attempt is made in this case to show that the tax proceedings, if permitted to culminate in a sale and conveyance, would operate as a cloud on the complainant's title; and this is the recognized head of equity jurisprudence that it is sought to rest the bill on and withdraw it from the influence of the principle stated in the preceding paragraph. It is manifest from the averments of the bill that it does not contain equity as a bill filed with respect of the sections embraced in article 13 of chapter 16 of the Code, though an...