Southern Ry. Co. v. St. Clair County

• Decision Date: 19 December 1899
• Parties: SOUTHERN RY. CO v. ST. CLAIR COUNTY.
• Court: Alabama Supreme Court

27 So. 23

124 Ala. 491

SOUTHERN RY. CO v. ST. CLAIR COUNTY.

Supreme Court of Alabama

December 19, 1899

Appeal from circuit court, St. Clair county; George E. Brewer Judge.

Action by St. Clair county against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action brought by St. Clair county against the Southern Railway Company to recover of the defendant special taxes assessed and levied under and in accordance with the act of the general assembly of Alabama entitled "An act to provide for the better support and maintenance of the public schools of St. Clair county," which act was approved February 18, 1895 (Acts 1894-95, p. 914). The defendant admitted the regularity of the assessment and the levy, and the correctness of the amount sued for, and the only defense interposed was the constitutionality of the act referred to. This defense was interposed both by demurrer to the complaint and by special pleas. The complaint alleged, in detail, the assessment and levy of the taxes authorized under said act, and that the amount due from the defendant under said taxes so levied was $385.72. To the complaint the defendant demurred upon the ground that the act of the general assembly under which said taxes were assessed and levied was unconstitutional, in that it was contrary to the provisions of article 11 and article 13 of the constitution and that the county of St. Clair had no authority, under the constitution of the state, to assess and levy the tax sued for in this case. This demurrer was overruled, to which ruling the defendant duly excepted, and the defendant then interposed a plea setting up the unconstitutionality of the act in which the assessment and levy of the taxes sued for was made. The cause was tried on an agreed statement of facts, in which the following facts were disclosed: The court of county commissioners of roads and revenues of St. Clair county, Ala., under and by virtue of the "Act to provide for the better support and maintenance of the public schools of St. Clair county," approved February 18, 1895 (Acts 1894-95, pp. 914-916), duly and regularly levied and caused to be assessed on July 8, 1895, 10 cents on the $100 in value of the property assessed as state taxes, or for such purposes for said year in said county, and provided in said levy and assessment that the same should be used in said county for the maintenance and support of the public schools therein, as provided for in said act of the legislature. The said court of county commissioners, by the order made on July 8, 1895 authorized and directed the tax assessor of said county to make such assessment under said act, and place the same on the assessment books of said county for that year, as provided for in said act and under the laws of the state; and they also fully authorized and empowered the tax collector of said county to collect said taxes so levied and assessed as provided for by law in such cases. The county taxes so assessed for said county for 1895, other than said school tax, amounted to 40 cents on the $100 of the value of the property so assessed as state taxes on the property in said county for said year 1895, including said school tax amounting to 50 cents, and no more, on the said state tax, or on $100 in value of the property subject to taxation in said county for the year 1895. The amount of school tax for 1895 so levied and assessed against the Southern Railway Company in said St. Clair county, and subject to taxation for said year, amounted to the sum of $385.72. The tax collector of said county demanded payment of said railroad company of its state and county taxes for the year 1895, and in pursuance of law in such cases made and provided. Said railroad company paid and discharged all its taxes so assessed in said county for said year, except said school tax, amounting to said sum of $385.72. Said railroad company declined and refused to pay said school tax so levied and assessed under said act of the legislature, on the sole ground, as it alleges and insists, viz. the unconstitutionality of said act. This was all the evidence introduced in the case, and the court, at the request of the plaintiff, gave to the jury the general affirmative charge in its behalf, to the giving of which charge the defendant duly excepted. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the overruling of the demurrer to the complaint, and the giving of the general affirmative charge at the request of the plaintiff.

Smith & Weatherley, for appellant.

Inzer & Greene, for appellee.

PER CURIAM.

The action in which the appellee was plaintiff and the appellant defendant was brought to recover of defendant taxes on property having its situs in the county of St. Clair. As is admitted, the taxes were levied and assessed by authority of an act of the general assembly approved February 18, 1895 entitled "An act to provide for the better support and maintenance of the public schools of St. Clair county." Pamph. Acts 1894-95, pp. 914-916. By the act the commissioners' court of the county is authorized to levy and collect, under the laws of the state, an annual tax of 10 cents on the $100 worth of all taxable property in the county as assessed for revenue for the state, for the support and maintenance of the public schools of the county, "provided, the tax rate of said county shall not exceed the sum of fifty cents on the one hundred dollars." Provision is made for the payment of the taxes as collected into the county treasury, and for the application and distribution of the moneys to the several townships and school districts of the county, corresponding to the general statutes regulating the distribution of moneys received from the state for the maintenance of the public schools of the county. Further reference to the act is not necessary, as no question touching its interpretation or construction is now presented. The primal, decisive question the case involves is whether it lies within legislative power to authorize a county keeping within the constitutional limitation of taxation on property to appropriate a part of the revenue derived from such taxation in aid of the public schools therein? Or, to state the question in a form meeting the argument directed against the validity of the enactment, is not the constitution prohibitory of all local taxation in aid of the public schools? Whatever may be the form in which the question is stated, it is of manifest importance to all the people of the state, and on its solution may depend in a large degree the prosperity and usefulness of the public schools in counties and municipalities in which similar legislation now exists. This, however, can be regarded only as admonitory of the gravity of the question, and of the care and deliberation with which it must be considered and determined. Taxation, though promotive of the public welfare, cannot be supported, if there is not authority of law for its imposition. Cooley, Const. Lim. 636. The prohibition of legislative power it cannot be, and has not been, insisted is express. All that can be said is that, as to local taxation in aid of the maintenance of the public schools, the constitution is silent; neither in express words authorizing nor prohibiting it. Of necessity, therefore, the insistence resolves itself into the inquiry whether the prohibition is a necessary implication from the parts of the thirteenth article of the constitution having relation to public schools and their maintenance? It is from these parts the implication is sought to be deduced.

While all legislative power is vested in the general assembly, it cannot be doubted that there may be implications arising from the constitution operating as prohibitions or as limitations upon the exercise of the power. The implication must however, as is said by Judge Cooley, "be a necessary, not a conjectural or argumentative, one." Cooley, Const. Lim. 78. From the express, affirmative provision of the constitution that "separate schools be provided for the children of citizens of African descent" (article 13, § 1), the implication necessarily arises that by legislation the children of the two races shall not be commingled in the public schools. The implication is necessary to effectuate the intention of the framers of the constitution, deduced from its express, affirmative words. So, from the appropriation of the poll tax-known in all our legislative history as a tax upon male inhabitants of a designated age-to the maintenance of the public schools in the county in which it is levied and collected, the necessary implication is that the tax must not be applied to any other use or purpose; and, if double taxation be avoided, that no other state poll tax shall be levied and collected. There are other necessary implications deducible from this article, to which now there is no occasion for reference or suggestion. But, in the absence of express, affirmative provision, from the mere silence of the constitution in reference to any subject, prohibition of legislative power cannot be implied. When the constitution is silent, the power to legislate exists, or there must be departure from the established principle "that constitutions are not in the nature of enabling acts, but are limitations upon the otherwise boundless powers of the legislature; 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." Mayor, etc., v. Klein, 89 Ala. 465, 7 So. 386; Sharpless v. Mayor, etc., 21 Pa. St. 147; Com. v. Maxwell, 27 Pa. St. 446. In Prouty v. Stover, 11 Kan. 256, defining the nature and extent of...