97 So. 543 | Ala. | 1923
Lead Opinion
The court is of the opinion, and so holds, that Acts 1919, p. 1047, authorizes districts and assessments thereby or therefor in violation of so much of section 23 of the Constitution as provides:
"That the right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association."
The corporation or association authorized by the act or for whose benefit the assessment is permitted is not a municipal corporation. Schultes v. Eberly,
The trial court erred in awarding the mandamus, and the judgment is reversed, and one is here rendered dismissing the petition.
Reversed and rendered.
ANDERSON, C. J., and SAYRE, SOMERVILLE, THOMAS, and MILLER, JJ., concur.
McCLELLAN and GARDNER, JJ., dissent.
Addendum
We have considered with care and interest the able and exhaustive brief of counsel, wherein it is urged that the conclusion of this court that the act in question is repugnant to section 23 of the Constitution of 1901 is wrong. First, we do not take issue with the general assertion that the Legislature has the power to enact all laws not prohibited by the Constitution, or with the suggestion that what is termed an "assessment for local improvements" does not fall within the restrictive provisions of our Constitution in dealing with taxation, as held in Birmingham v. Klein,
The point upon which this case is decided was not presented or expressly decided in the case of Harkins v. Smith,
The rehearing is denied.
SAYRE, SOMERVILLE, THOMAS, and MILLER, JJ., concur.
GARDNER, J., dissents.
BOULDIN, J., not sitting.