Hare v. Kennerly

Decision Date14 February 1888
Citation83 Ala. 608,3 So. 683
PartiesHARE v. KENNERLY, COLLECTOR.
CourtAlabama Supreme Court

Appeal from city court, Mobile county; O. J. SEMMES, Judge.

This was an action of detinue by William Hare, the appellant against Lewis H. Kennerly, the appellee, and who was at the time the tax collector, duly appointed, for the city of Mobile. The defendant, in the discharge of his duties as such tax collector, levied upon certain goods or chattels of the plaintiff in default of his payment of his taxes, and this suit was brought to recover them. The defendant pleaded, in short, the general issue, and specially pleaded justification for the levy and seizure upon the goods here in controversy as given him under the authority of the act of the general assembly of Alabama, which act is stated in the opinion. The plaintiff demurred to the plea; the court overruled the demurrers; plaintiff excepted. The several grounds of demurrer, and the ruling of the court, are sufficiently brought in the opinion of the court. At the request of the defendant, the court charged the jury "that, if they believed the evidence, they must find for the defendant."

S B. Brown and James Cobbs, for appellant.

J Little Smith and Hannis Taylor, for appellee.

SOMERVILLE J.

The suit is one in detinue for specific property, brought by the plaintiff against the defendant, as tax collector, who justifies the seizure and detention of the property under a levy made for taxes under the provisions of the act approved December 8, 1880, adopting and carrying into effect a plan for the adjustment and settlement of the then existing indebtedness of the city of Mobile. Acts 1880-81, pp. 329-360. The various rulings of the court practically raise but one controlling question,-the constitutionality of this statute,-which was decided by the court below favorably to its validity, by giving the general affirmative charge requested by the defendant, and overruling the plaintiff's demurrers to the special plea setting up the circumstances of the levy and detention in detail. The particular clause of the constitution which is first supposed to be infringed by this statute is section 4 of article 11, which is in the following language: "The general assembly shall not have the power to levy, in any one year, a greater rate of taxation than three-fourths of one per centum on the value of taxable property within this state." Const. 1875, art. 11, § 4. The objectionable portion of the act of December 8, 1880, which is insisted to be violative of this constitutional provision, is the legislative levy of taxes made under section 8, which reads as follows: "Sec. 8. Be it further enacted, that in execution of the trust assumed by the state in said act of February 11, 1879, to provide legislation to carry into effect the adjustment and settlement referred to in the title of this act, a tax of three-fourths of one per centum for each year, until the bonds and coupons under this act are fully paid, is levied, as authorized by the constitution, and shall be collected on the value of all the real estate and personal property within the limits of said city of Mobile, as the same are defined in the charter of said city, which was vacated and annulled by the aforesaid act of February 11, 1879, according to the value of such property as the same may have been assessed for state taxation during the year preceding that for which said tax is levied and is to be collected." It must be kept in mind that the act of February 11, 1879, here referred to, expressly vacated the charter of the city of Mobile, dissolved its corporate existence, and provided for the application of the corporate assets in discharge of the debts of the city. Acts 1878-79, pp. 381-392. It is admitted that the tax levied by section 8, as above set out, when taken in connection with the taxes levied for state purposes, is in excess of three-fourths of 1 per centum, which is the limit of the rate authorized to be levied under said section 4 of article 11. Unless, therefore, it can be sustained as a valid exercise of the taxing power, referable to some other authority than this particular clause, it cannot be recognized as valid. This authority is sought for by the appellee in the general discretionary power of the legislature to regulate the subject of taxation, which is unlimited, except so far as that department may be restrained by the state or federal constitutions. It is argued that the act of December 8, 1880, can be fully sustained by this settled principle, interpreted by other clauses of the constitution bearing on the taxing power of the state. Among these clauses is section 7 of article 11, which, after declaring that "no city, town, or other municipal corporation" shall levy or collect a larger rate of taxation, in any one year, than one-half of 1 per centum of the value of property authorized to be assessed, besides 1 per centum to pay existing indebtedness, makes the following exception in favor of the city of Mobile: "Provided, this section shall not apply to the city of Mobile, which city may, until the 1st day of January, one thousand eight hundred and seventy-nine, levy a tax not to exceed the rate of one per centum, and from and after that time a tax not to exceed the rate of three-fourths of one per centum, to pay the expenses of the city government, and may also, until the 1st day of January, one thousand eight hundred and seventy-nine, levy a tax not to exceed the rate of one per centum, and from and after that time a tax not to exceed the rate of three-fourths of one per centum, to pay the existing indebtedness of said city, and the interest thereon." The tax levied under section 8 of the act of December, 1880, is precisely the rate here authorized-three-fourths of 1 per centum; and the express purpose for which it was levied and is to be collected is "to pay the existing indebtedness" of said city, as compromised under the direct authority of legislative sanction.

The objection made is that the state levies the tax, and not the city of Mobile, and that, under section 7 above referred to the city alone was empowered to levy it. The fallacy of this suggestion consists in the assumption that these several provisions of the constitution are grants of the power to tax, instead of limitations upon the exercise of such power inherent in the legislative branch of the government. Constitutions are to be interpreted in the light of the general principles of our common-law jurisprudence, and of history, as well as by careful comparison of all of their various parts bearing on subjects of a cognate character. The framers of our c...

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26 cases
  • State v. Alabama Fuel & Iron Co.
    • United States
    • Supreme Court of Alabama
    • July 25, 1914
    ......This applies to every method of. taxation, whether upon an ad valorem or other revenue basis,. or upon privileges or occupations. Hare v. Kennerly, . 83 Ala. 608, 3 So. 683; State v. Street, 117 Ala. 203, 23 So. 807; W.U. Telegraph Co. v. State Board, . 80 Ala. 273, 60 Am.Rep. ......
  • State ex rel. Reynolds v. Jost
    • United States
    • United States State Supreme Court of Missouri
    • April 12, 1915
    ......1; State ex rel. v. County Court, . 34 Mo. 546; St. Louis v. Shields, 52 Mo. 351;. Mayor v. Guthrie ex rel., 1 Okla. 188; Hare v. Kennedy, 83 Ala. 608; Gilkerson v. Federal. Justices, 13 Gratt. 577; Douglass v. Harrisville, 9 W.Va. 165; Powell v. Parksburg, . 28 ......
  • Dooley v. City of Detroit, s. 53
    • United States
    • Supreme Court of Michigan
    • May 9, 1963
    ...statutory limitation of § 3(g) of our home rule cities act, reference must be made, as it was in the Phoenix case, to Hare v. Kennerly (1888), 83 Ala. 608, 3 So. 683. ...
  • Newton v. City of Tuscaloosa
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    • Supreme Court of Alabama
    • June 30, 1948
    ...or modified (no contractual rights of third persons intervening to compel action). Edwards v. Williamson, 70 Ala. 145; Hare v. Kennerly, 83 Ala. 608, 3 So. 683; v. Street, 117 Ala. 203, 23 So. 807; Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 388, 85 So. 774; Jefferson Coun......
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