Beroujohn v. Mayor of Mobile

27 Ala. 58 | Ala. | 1855

GOLDTH WAITE, J.

It is unquestionably the duty of the city government to keep up the public burial grounds, and to bury the paupers ; and as all the corporators are interested in the discharge of this duty, in justice all should bear some portion of the burden it imposes ; and if the corporation was to pass a by-law, the effect of which was to throw the whole expense upon a particular class of the cor-porators, it would be so manifestly unjust, that no court could, we think, hesitate to declare it void as being unreasonable. Ang. &Ames on Corp. § 347. Neither would it make any difference, in principle, whether the by-law accomplished this result directly, or effected it by indirect means. In either aspect, it would be equally, objectionable. The sexton is paid out of the estates of those to whom his services are rendered, and it is from that source he is to be reimbursed for the expenses he incurs in the discharge of the duties which the ordinance requires him to perform. If the expense was great, it would tend to undue exactions upon such estates; and this would be the case, although his charges might be regulated by the municipal authorities, since, to induce any one to take the office, the rates must be so fixed as to cover the expense and trouble of all the duties which the law requires him to perform. If the corporation had said that the estates of those who should be interred in the public burial grounds, or of those who were buried by the public sexton, should bear the expense of building a market house, or the cost of any other public improvement, it would be in opposition to the spirit and policy of the charter, as its tendency would be to levy an indirect tax upon a portion of the population only, and thus to disturb that equality of burden which it was the object of the fundamental law to provide against, by requiring that all taxable property should contribute to the expenses of the corporation only in proportion to its value, “ making no distinction as to anyperson.” — Acts 1843-4, p. 182, § 19. We can see no difference, in principle, between the case put, and the one presented by the record. The burial of paupers, and maintaining the burial grounds, is, in every sense of the word, a public corporation duty, the expense of which should be borne by the city ; and the ordinance, by apportioning it unequally, is in spirit opposed to the law of the charter, and therefore void.

From what we have said, it follows that the court should have sustained the demurrer to the complaint; and as the correct action of the court below in this respect, will be decisive of the case, as now presented, it is unnecessary to go into an examination of the other questions.

Judgment reversed, and cause remanded.