City of Anniston v. Southern Railway Co.

112 Ala. 557 | Ala. | 1896

HARALSON, J.

1. The tax to collect which this suit was instituted, was levied under Par. 8 of section 7 of the charter of the city of Anniston, (Acts, 1894-95, p. 1047), which provides that the city shall, within its limits, have power by ordinance, “To license, tax.and regulate auctioneers, hotels, &c., [specifying many trades and occupations] , and all other privileges, ■ trades and occupations of all kinds and classes whether of like kind to those mentioned or not.”

The ordinance of the city under which the tax was levied provides : “That every person, firm or corporation engaged in the city of Anniston in the business of operating a railroad or railroads, for the transportation of freights and passengers, one or both, to and from the city of Anniston, to and from other points within the State of Alabama, and keeping an office or place of business in the city of Anniston, shall pay an annual license tax of one hundred dollars for each main line of railroad used in connection with such business, running into or through the city of Anniston, and before engaging in or carrying on such business, running into or through the city of Anniston, and before engaging in or carrying on such business, shall take out and pay for a license for the carrying on of such business, and no license under this ordinance shall be issued for less than one hundred dollars,” &c.

Section 14 of the charter creates a lien subordinate to that of the State and county, on all real and personal property for payment of taxes which may be assessed against the owner on his jn’operty. Section 17 of the charter provides a mode for the collection of delinquent taxes, by specified proceedings for obtaining a judgment against the tax-payers and for the sale of the property on which the taxes were levied.

2. It is not disputed that a license-tax, so called, falls within the general term, taxes, and that the party against whom it is levied is bound for it, and in the absence of any statute on the subject, is liable to like remedies for its collection, as for any other species of taxes. It is insisted, however, for the appellee, that the statute provides a remedy for the collection of this tax, which is exclusive of an action of assumpsit at law for the enforcement of its collection. But this position is untenable for at least two very good reasons.

(1.) Mr. Cooley, in discussing the questkm whether taxes are debts for which an action at law will lie, states that there is a division in the decisions of courts on the subject and, admitting that some courts have held that the imposition and assessment of a tax create a legal obligation to pay, upon which the law will raise an assumpsit, notwithstanding the statute has given a special remedy, he further states, that in general the conclusion has been reached, that when the statute undertakes to provide remedies, and those given do not embrace an action at law, a common law action for the recovery of the debt will not lie. He collates the authorities pro and con. — Cooley on Taxation, (2ded.), pp. 15, 16.

Desty, in referring to these statutory remedies for the enforcement of taxes, states, that a statute creating a new remedy, without expressly repealing the old remedy, is merely cumulative, and does not deprive the. court of its jurisdiction to enforce the old remedy; that, the government is entitled to all the remedies for the collection of taxes, including an ordinary suit at law, if it chooses to resort to that remedy; that assumpsit is the proper form of action for the recovery of a delinquent tax, and that the preponderance of authority is that either debt or assumpsit may be sustained for the recovery of taxes, as debt lies for a sum of money certain, due by statute. — Desty on Taxation, § 126, p. 706.

In reviewing the authorities on the subject, in Perry County v. The Railroad, 58 Ala. 564, this court, by Stone, J., said: “We think it may be affirmed as the result of the foregoing, and a large preponderance of authorities, that taxes levied and assessed become a legal liability on the tax-payer, that may be enforced by an action at common law, unless the statute gives a remedy that is, in its nature, exclusive.” — Burroughs on Taxation, § 105, p. 253.

Again, the court in Winter v. The City Council of Montgomery, 79 Ala. 481, held to the doctrine, as being the sounder and better one, that taxes levied and assessed create a legal liability, which will support an action at law, although a statutory remedy is given to enforce their payment. — The State v. Fleming, ante p. 179.

The case of The State v. McAllister, 60 Ala. 105, is not in conflict with these two. In that case, the special proceeding authorized, was limited to justices of the peace.

We hold, therefore, that the remedy given for the enforcement of taxes, by the charter of Anniston is merely cumulative of former remedies, and is not exclusive. There are no words of exclusion of other remedies, and nothing from which we may infer that the legislature designed the remedy to be such.

(2.) But, independently of this, the remedy there created is against the real and personal property that had been assessed, where the taxes were delinquent. It is for the enforcement of the city’s lien on such property, for the payment of taxes assessed on it, and is really a proceeding in rent.

In this case, the tax is not on property, but on a different subject and species of taxation, — a license or privilege tax, for doing business in the city. There is a marked distinction in our constitution kept up in our revenue system and recognized in the adjudged cases, between these two subjects of taxation, — property as such, and a license or privilege tax. — W. U. Tel. Co. v. State Board of Assessment, 80 Ala. 273 ; Cooley on Taxation, 570, 571. The statutory remedy in question has no reference to the enforcement of liens on property for the payment of a license or privilege tax. The remedy at law is the only one for the collection of such a tax.

3. The appellant properly yields the contention, raised by his demurrer below, that the imposition of this tax was an interference with inter-state commerce. It is well settled that a' sovereign State may require a privilege tax on corporations doing business . within its borders, provided the tax is confined to business done entirely within the State. — Moore v. The City of Eujaula, 97 Ala. 670 ; Emert v. Missouri, 156 U. S. 296 ; Postal Tel. Co. v. Charleston, 153 U. S. 692; Express Co. v. Seibert, 142 U. S. 339. There is no pretense that the tax was imposed for doing business elsewhere than in the city of Anniston.

4. As to the other points raised by demurrer, that the city of Anniston is not authorized to exact a license tax upon defendant’s business, when no similar tax is exacted.by the State, it is sufficient to say, as counsel for defendant admit, that this point has been ruled adversely by this court to the appellee since the decision of this case in the court below. — Holt v. Mayor & Aldermen of Birmingham, 111 Ala. 369.

5. The defendant company, which had an office or place of business in Anniston, had two main lines of railroad operated through and doing business in said city, — one, formerly the East Tenn. Va. & Ga. Railroad, and the other the Georgia Pacific Railroad, — both being main lines, now and before the commencement of the suit. It was just and entirely within the grant of power from the legislature, for the city to impose upon each of these main lines, though operated by one company, a separate privilege tax. It was a way of equalizing the burdens of taxation between this company, and any other which might not be so fortunate as to be able to operate more than one line.

The power to tax occupations and privileges, as is held, involves the right to select the mode in which the taxes shall be levied, and to determine the amount of the tax. This may be done having reference to the income from the business taxed, the value of the property used in its prosecution, the amount of business done, or it may be done arbitrarily by the taxing power, if done -within constitutional limitation, and the burden is made to rest equally upon all of a class. — 25 Am. & Eng. Encyc. of Law, 489, and authorities cited. We are unable to discover why the methods adopted by the city, having reference to the protection afforded, the value of the properties, the amount of the business done, and the equalization of the burdens of taxation, is not a proper one and the tax was not legally imposed.

The city court erred in its rulings, and its judment is reversed and the cause remanded.

Reversed and remanded.