City of Huntsville v. County of Madison

• Decision Date: 05 April 1910
• Citation: 166 Ala. 389,52 So. 326
• Parties: CITY OF HUNTSVILLE v. COUNTY OF MADISON.
• Court: Alabama Supreme Court

52 So. 326

166 Ala. 389

CITY OF HUNTSVILLE v. COUNTY OF MADISON.

Supreme Court of Alabama

April 5, 1910

Appeal from Chancery Court, Madison County; W. H. Simpson Chancellor.

Bill by the City of Huntsville against Madison County to declare and enforce a lien against the county courthouse situated within the city for a special assessment against it for paving and street curbing, etc. From a judgment sustaining demurrers to the bill, plaintiff appeals. Affirmed.

Brickell & Smith, for appellant.

Walker & Spragins, for appellee.

ANDERSON J.

That there is a well-defined distinction between general taxation and a local assessment for public improvements, such as pavement, sewerage, etc., there can be no doubt. It is also settled that constitutional or statutory exemption of public property from general taxation does not necessarily exempt it from special local assessment for public improvements; but while there is a conflict, the weight, and, we think, the sounder authorities, hold that general language in a statute giving cities power to levy assessments for street improvements is not sufficient to embrace the property of the state or county which is devoted to strictly public uses, nor authorize the enforcement of such special assessment against it under a general judgment against the county. In other words, property owned and held by the state and counties for public purposes is generally exempt from taxation of any description, and is not to be deemed subject to taxation in any form, unless the intent of the Legislature to render it so clearly appears. Worcester County v. Mayor of Worcester, 116 Mass 193; Page & Jones on Taxation, § 580; Gray on Limitation of Taxing Powers, §§ 1906, 1174, 1175; Witter v. Mission School District, 121 Cal. 350, 53 P. 905, 66 Am. St Rep. 33; Edwards Co. v. Jasper Co., 117 Iowa, 365, 90 N.W. 1006, 94 Am. St. Rep. 301, and note; City of Clinton v. Henry Co., 115 Mo. 557, 22 S.W. 494, 37 Am. St. Rep. 415; Franklin Co. v. Ottowa, 49 Kan. 747, 31 P. 788, 33 Am. St. Rep. 396. For an able and complete discussion of the subject, see note commencing on page 400. While there are many authorities holding that this special tax is permissible unless prevented by the statute, they are almost uniform in holding that it cannot be enforced by fixing a lien on the public property, and those that permit the levy merely authorize the collection by a personal judgment rather than by an action in rem. It must also be borne in mind that most of the statutes considered in this line of decisions did not confine the right to collect the tax solely by subjecting the property, but authorized a personal judgment. Therefore, in view of the fact that they all hold that the tax could not be enforced by an action in rem, we are of opinion that they would have held that the right to levy against public property did not exist had the statutes prescribed an action in rem as the exclusive remedy to enforce the collection of said tax. Article 26, p. 638, Code 1907, provides for the levy and assessment by municipal corporations of this special tax for public improvements and prescribes the remedy for the enforcement of the collection of same, and which is, of course, subject to the limitations fixed by section 223 of the Constitution of 1901. The authority to levy this tax is general, and the...