112 Ala. 654 | Ala. | 1896
In Taylor v. Goodwin, 4 Q. B. Div. 228, it was held, that a person riding a bicycle on a highway at such a
In Williams v. Ellis, 5 Q. B. Div. 175, it was held, in construction of the act allowing tolls to be collected at a gate on a turn-pike road, that a bicycle was not era-’ braced within the purview of the act imposing a toll of 6 pence, “for every * * sociable, chariot, berlin, landau,” &c., or other such carriages, for the reason, that the act inrposed a toll on particular carriages which were described as, “or other such carriages, ” which latter must be ejusdem generis with the carriages previously specified. The case of Taylor v. Goodwin, was referred to in this later decision with approval.
It is a matter of common knowledge, that the bicycle is now used for the purpose of the conveyance of parties owning or hiring the wheels, largely for the purpose of pleasure and exercise, and that in cities and towns, especially, they are coming to be used for the transportation, from point to point,. of packages of goods and merchandise such as they are fitted to carry'. What further possibilities await the bicycle as a means of the transportation of persons, goods and merchandise, it is not important now to consider or predict. They remain to be developed. On principle and. authority, however, it may be said, that it has taken its place safely with the vehicles and carriages of the time, entitled to the rights of the road and street equally with them, and is subject in its use to the same liabilities. Its use upon the highways of the country and upon the streets and sidewalks of towns and cities may be regulated under legislative and delegated municipal authority. — Porter on Roads & Roadside, 157; Elliott on Roads and Streets, pp. 331, 635; Horr & Bemis on Municipal Police Ordinances,
The imposition of such a license tax, it has been well said, is such as may be referred to the taxing power, or to the police power, — to the latter, when its object is merely to regulate, and the amount levied is merely to pay the expenses of enforcing the regulation, including reasonable compensation for the additional expense of municipal supervision over the particular business ox-vocation ; and to the taxing power, if its main object is revenue. If, however, it appears that the legislature has not bestowed the right to tax under either of these delegated powers, but has omitted it, the imposition of the tax is without legislative sanction and void. — City of St. Louis v. Green, 7 Mo. App. 468 ; s. c. 70 Mo. 562 ; 1 Dillon on Munic. Corp., § 357 ; Burroughs on Taxation, § 77; Van Hook v. City of Selma, 70 Ala. 361.
It is provided again, that the taxes levied shall have the force and effect of a judgment against the person assessed therewith, to which a preference is given over all other securities and incumbrances, and for the collection of which a lien is given on all the real and personal property of the tax-payer ; that the mayor shall certify on the tax-book, that said taxes have been fixed and levied, and append his warrant, directed to the tax collictor, authorizing and commanding him to collect the taxes so levied, and shfill deliver said tax book and warrant to the tax collector, whose duty it is made forthwith to notify the public by advertisement for thirty days in some newspaper published in the city, that he is ready to receive payment of the taxes so levied ; that the tax collector shall be charged with the whole amount of the assessed taxes for the year ; that he shall issue garnishment process for the collection of taxes and licenses as on judgment returnable to any court having jurisdiction of the amount; that after the expiration of ninety days from the first publication of the tax collector’s notice, as aforesaid, he may levy upon and seize any personal property, if any there be, or if there be none, or not sufficient personal property, then upon the real estate of the delinquent tax-payer; and that he shall be charged
Without these provisions, it may be, that the tax being illegal, there would be an adequate remedy at law against its collection, and chancery would not enjoin, (High on Injunctions, §§ 543, 545) ; and that twenty dollars being the fixed minimum of chancery jurisdiction, the court would not entertain a bill to enjoin the collection of a tax of one dollar. — Hall v. Cannte, 22 Ala. 650; Campbell v. Conner, 78 Ala. 211. But, the statute takes the case from the influence of any such rules as are applicable to the general exercise of the jurisdiction of equity courts ; and any tax-payer is authorized by the charter, as we'have seen, to enjoin the levy and collection of any illegal tax levied and assessed by the general council. The act in terms bestows the right of injunction without bond, in favor of the tax-payer, whenever the general council ‘ ‘may levy or attempt to impose [any tax or license] • beyond the aforesaid tax and license charges,” which may not be rightfully levied and collected. It is idle to say, that the general council have not levied and attempted to impose this illegal tax, or that the collector has no intention of collecting the saíne, because it is illegal. It has been' levied, and the collector is charged with it, and by the terms of the charter, must account for and pay it himself unless he. has been unable to do so after he has used all means conferred on him for its collection, and the collector in this suit is seeking to maintain the legality of said levy.' The wrong done the appellant was in the imposition of said illegal tax, and it was not incumbent on him to delay filing his bill until the further wrong of a levy on his property had occurred, or his creditors were garnished. If so, the very purpose of the legislature in granting relief against such unlawful menaces of the tax-payer’s rights would thereby be defeated. — 1 High on Injunctions, § 18.
The bill should not have been dismissed for want of equity, but the motion to dismiss it on that account should have been overruled, and the injunction perpetuated.
Reversed and a decree will be here rendered, restoring the injunction that had been granted, and making it perpetual.
Reversed and rendered.