78 So. 100 | Ala. Ct. App. | 1918
The defendant was tried and convicted of violating Ordinance No. 405C of the city of Birmingham, which is as follows:
"Sec. 1. That every male inhabitant of the city of Birmingham between the ages of 21 and 45 years shall, on or before the 1st day of August, 1916, pay to the city comptroller, for the use of the city of Birmingham, street tax for the remainder of the year 1916, of $2.50: Provided, that any person liable for a street tax may, in lieu of said tax, work three days on the public streets of the city of Birmingham, under the direction of the street commissioner, by September 1, 1916.
"Sec. 2. Be it further ordained that every male inhabitant of the city of Birmingham, between the ages of 21 and 45 years, shall, on or before the 1st day of March, 1917, and every year thereafter, pay to the city comptroller for the use of the city of Birmingham a street tax of $5 per annum: Provided, that any person liable for a street tax may, in lieu of said tax, work six days on the public streets of the city of Birmingham, under the direction of the street commissioner, by March 1st of each year.
"Sec. 3. Be it further ordained that the funds arising under this ordinance shall be kept in the city treasury as a separate fund to be used exclusively for the support and maintenance of the public streets within the limits of the city of Birmingham.
"Sec. 4. Be it further ordained that any person liable for the street tax under the provisions of this ordinance who fails to pay the same, or discharge the same in labor in the manner prescribed herein, shall, upon conviction, be fined not less than $5, nor more than $10.
"Sec. 5. Be it further ordained that this tax shall not apply to persons residing in the city of Birmingham for a less period than three calendar months."
The defendant urges two propositions as reasons why the judgment appealed from should be reversed, both of which go to the validity of the ordinance above set out, but it is not deemed necessary to treat both of these propositions, as the one dealt with here is conclusive of this appeal.
It is insisted by the defendant that so much of the ordinance as authorizes the imposition of a fine on the person liable to the tax, who fails to pay it, or discharge it in labor, is ultra vires, and therefore the material proposition in the case is: Has the city of Birmingham the authority to provide by ordinance for the imposition of a fine on a person who is subject to street tax, and fails to pay it or discharge it in labor?
Section 47 of the old city charter (Weakley's *355 Local Laws of Jefferson County, p. 47) is as follows:
"Be it further enacted that said board shall have authority to require all male inhabitants who have resided therein for ten days and who are between the ages of eighteen and fifty years to work upon the streets of said city for at least five days in each year under the direction of such officer as the board may appoint: Provided, that each person so required to work may relieve himself from so working by paying into the city treasury a sum to be fixed by the board, not exceeding five dollars; and the money so collected or paid shall be used and applied exclusively to the improvements of the streets: Provided, further, that the inhabitants shall be exempt from working on roads and highways outside the limits of said city."
Section 1336 of the Municipal Code, which is a part of the present charter of the city of Birmingham, is as follows:
"Roads; Exemption of Inhabitants from Working: The inhabitants of any municipality shall be exempt from working on the highways or roads outside the limits thereof, and may be required, for the support of the streets within the limits, to pay a street tax of not exceeding five dollars per year."
It is contended by the appellant that section 1336 of the Code of 1907 supersedes section 47 of the old city charter, and that section 1336 is the exclusive law on the subject relating to street tax. An examination of the two sections shows that there is a marked difference between them, viz.: Under section 47 of the old city charter, the city was authorized to require its male inhabitants to work the streets, and was required by law to accept a moneyed commutation in lieu thereof. Under section 1336 of the Code, the city is not authorized to require its male inhabitants to perform labor; but, to the contrary, is only authorized to levy a tax of a specified sum, and is not authorized or required to accept any commutation in lieu of the moneyed tax which the statute purports to authorize it to levy.
"It is an old and well-defined rule of statutory construction that a subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate as a repeal of the former." Colvin v. Ward,
Section 1336 of the Code is a complete revision of that particular subject (street tax), and we are of the opinion that section 47 of the old charter was repealed by section 1336 of the Code. Colvin v. Ward, supra; Baader v. Cullman,
It is well settled that the requisition of labor for working the public highway, though commutable in money, is the exaction of a public duty, and is not taxation. Butler v. Perry,
"The books have been examined in vain for an authority which will authorize the exaction from a citizen of the contribution of his property for public service, under the theory that it is his duty as a citizen to so contribute."
In this case, the thing primarily required was the use of a citizen's mules (instead of his money) on the plablic road, and it was held that the requisition of mules for road duty was a tax, even though the owner of the stock was permitted to pay a fixed sum in lieu of furnishing his mules for work on the highway. There is no difference in principle between the requisition of mules and money. Each are property. In addition to this, the statute (section 1336) speaks of this assessment as a street tax. It appears in the Municipal Code, under the subject of taxation, and the ordinance requires a citizen to pay a street tax. We therefore conclude that the burden imposed by the ordinance is a tax.
Statutes authorizing the levy of taxes are to be strictly construed; they are not to be extended by implication, nor is their operation to be enlarged so as to embrace matters not specifically pointed out, though standing upon a close analogy. Lott v. Ross Co.,
With these well-established rules of construction applied to section 1336 of the Code, it is obvious that said section does not authorize the city to require a citizen to work on the streets. Neither does it authorize the city to punish him for his failure to do so. It likewise provides no remedy for the collection of the tax authorized to be levied. The extent of the authority therein conferred is to levy a tax of $5 per year. Municipal corporations have no implied power, but only such power as has been expressly granted to them. Boyd v. Selma,
It is further well settled that the right to require the payment of a tax does not carry with it the power to penalize a party in default, and it is laid down by eminent authority that a municipality cannot prescribe a penalty for neglect to pay taxes, unless it is expressly authorized to do so. Perry County v. Selma R. R.,
In the case of Cooper v. City of Savannah,
"The right of the city authorities to impose a tax upon all free persons of color within the corporate limits is recognized. But if the ordinance which the petitioners are charged to have violated be a tax ordinance, and the offense for which they are imprisoned is the nonpayment of the tax imposed by such ordinance, then in our judgment their imprisonment is illegal. While we admit the right of the corporation to impose and collect the tax specified in the ordinance, yet, we deny the right of the corporation to enforce its collection by imprisonment."
The petitioners were discharged, notwithstanding the city had full power and authority to make all such rules and regulations as might be deemed proper for the well-being and safety of the inhabitant's of the city in regard to the conduct and residence of free persons of color within the corporate limits.
In a later case, that of Augusta v. Dunbar,
"The right to enforce the ordinance by a fine does not, we think, fairly include the right to assess a fine for the nonpayment of a tax or other debt to the city, merely because that debt grows out of an ordinance."
In Ex parte Grace,
The city passed an ordinance making it a misdemeanor to fail to work the streets. Its authority to do so was questioned, and it was urged that the charter power above referred to was ample authority for the passage of the ordinance whose validity was attacked. The court said:
"To our minds, the language is not susceptible of this construction, which we are of the opinion would be a strained and unnatural construction, to say the least."
See, also, Galloway v. Town of Tavares,
37 Fla. 58 ,19 So. 170 , where a similar ordinance was held invalid.
As suggested above, section 1336 of the Code does not attempt to provide a remedy for the enforcement of the collection of the tax authorized to be levied; but, on the contrary, the city charter is silent respecting the method by which the collection of the tax may be enforced. In such cases, the authorities say that the city cannot resort to any remedy more summary than an ordinary action at law. Dillon, Mun. Corp. (5th Ed.) § 1417; 28 Cyc. 1728, 10; 37 Cyc. 724; Merriman's Case,
In reaching our conclusion, we have not overlooked section 1251 of the Code and section 6 of the "Omnibus Bill." Acts 1915, p. 296. The provisions might be termed "general welfare" clauses of the city charter, Posey v. Town of North Birmingham, supra. And each of them must be strictly construed. City of Montgomery v. West,
Considered in this light, it is obvious that neither section 1251 of the Code, or section 6 of the Omnibus Bill, authorizes the city to provide by ordinance that a person who is delinquent in the payment of his street tax may be fined or imprisoned. In fact, this view has been repudiated by eminent authority. Cooper v. City of Savannah,
What we have said here in no wise conflicts with the decision in Barefield's Case,
The cases referred to by appellee (Goldthwaite v. City of Montgomery,
The ordinance, in so far as it levies the tax and allows the tax to be paid by labor, is valid, but section 4 thereof, which undertakes to enforce payment of the tax by criminal process, is in excess of the power granted by section 1336 of the Code, and is therefore invalid. The trial court erred in holding section 4 of the ordinance valid.
The case being tried without a jury, upon an agreed statement of facts, the judgment appealed from is reversed, and a judgment is here rendered discharging the appellant.
Reversed and rendered.