Elyton Land Co. v. City of Birmingham

• Decision Date: 28 May 1890
• Citation: 89 Ala. 477,7 So. 901
• Parties: ELYTON LAND CO. v. MAYOR, ETC., OF BIRMINGHAM.
• Court: Alabama Supreme Court

7 So. 901

89 Ala. 477

ELYTON LAND CO. v. MAYOR, ETC., OF BIRMINGHAM.

Supreme Court of Alabama

May 28, 1890

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

This action was brought by the appellant, a private corporation against the municipal authorities of the city of Birmingham to recover taxes which plaintiff had paid under protest, as levied by defendant for and during the year 1887, and was commenced on the 15th October, 1888. Defects of forms in the pleadings were waived by the parties, and the case was submitted to the decision of the court, without the intervention of a jury, on an agreed statement of facts. The court rendered judgment for the defendant, and this judgment is here assigned as error.

A T. London, for appellant.

Cabaniss & Weakley, for appellee.

CLOPTON J.

Section 20, subd. 25, of the charter of the city of Birmingham, after conferring power on the mayor and aldermen to assess, levy, and collect taxes on all property in the city for each year, not exceeding one-half of 1 per cent. on the value thereof, and providing that the assessments are to be made by the clerk of the city from the state and county assessment books as assessed for state taxes the preceding year, further provides: "That if there was any property in the city on the 1st day of January of the then current year which was not in the city on the 1st day of January of the preceding year, or if there were improvements on the 1st day of January of the then current year erected on property materially enhancing the value of such property, which said improvements had not been erected on the 1st day of January of the preceding year, and consequently not assessed for state taxation during the preceding year, then it shall be lawful for the clerk of the board, and it shall be his duty, to assess such property or improvements at a fair valuation, which said valuation shall be added to the valuation as assessed for state taxes for the preceding year, and the taxes so assessed shall be collected as the other assessments are collected." Acts 1882-83, p. 301. Under the authority conferred by this section, the mayor and aldermen caused to be assessed for taxation for the year 1887 personal property of the Elyton Land Company, which was not within the city on the 1st day of January, 1886, but was within the city on the 1st day of January, 1887, and had not been assessed for state taxation during the preceding year. The company paid the taxes under protest, and bring the action to recover the amount.

The record raises the question whether the provision of the charter conferring such authority infringes section 7 of article 11 of the constitution, which declares: "No city, town, or other municipal corporation, other than provided for in this article, 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." The provision otherwise relates to the power to levy an additional rate for the payment of debts existing at the time of the ratification of the constitution. In the absence of constitutional restrictions, the general assembly could confer on municipal corporations the power of taxation for municipal purposes as to rate, assessment, and subjects which it possesses for state purposes. The inhibition against the power of municipal corporations to levy a greater rate of taxation than prescribed in the constitution operates a limitation on the power of the legislature to delegate authority for that purpose. In interpreting limitations upon legislative power in state constitutions, the nature and objects of the particular limitations should be kept in view and the causes in which they originated considered in the light of history and former constitutions, and such force and operation given to the language employed consistent with its legitimate meaning as may fairly remedy existing and apprehend evils, and accomplish the desired ends. The framers of the constitution were cognizant that no governmental power is more liable to abuse than the taxing power, and also of its oppressive use and perversion by municipal authorities without regard to the interests of the citizen. They sought to prevent this abuse by restricting the exercise of the power within moderate and protective limits. It is contended that the constitutional inhibition is against a higher rate of taxation, and was not intended to restrict the power of the municipality to assess taxes on property only which had been assessed for state taxation. This construction ignores the relation which the rate sustains to the valuation, and their inseparable connection. As all taxes levied on property in this state are required to...