89 Ala. 461 | Ala. | 1889
This appeal involves the constitutionality of an act “to authorize and empower the mayor and aldermen of Birmingham to improve the side-walks of the city of Birmingham, Alabama, at the cost of parties whose property abuts such side-walks,” approved February 16th, 1885.- — Bess. Acts 1884-5, pp. 620-622. Those sections of the act which are necessary to an understanding of the point under consideration, are the following:
“Section 1. Be it enacted by the General Assembly of Alabama, That the mayor and aldermen of Birmingham shall have full power and authority to cause and procure all side-walks along the streets, avenues and alleys now established, or hereafter to be established in said city, to be graded, leveled, curbed, graveled, stagged, re-leveled, re-curbed, re-graveled, re-cindered, re-paved, or re-macadamized, in such manner, and by such methods, and with such material, as they may deem best and proper.”
“Sec. 2. Be it further enacted, That the said mayor and aldermeii of Birmingham shall have the power to have such work done, or cause the same to be done, and the expense
It thus appears that the purpose of the act — and its effect, if valid — is to authorize local assessments against property to pay for pavements constructed along its front, the cost, as between different owners, to be apportioned with reference to the benefits which are assumed to accrue to them severally from the betterment. However the relative benefits are to be determined in a given case, and the sum to be charged on a particular lot ascertained — whether by reference to the superficial area of the property, or the length of its abutment on the side-walk, or the uses to which it is devoted, as being to a greater or less extent facilitated by the improvement, or the enhancement thereby of its value compared with other property subject to the gross assessment— one thing is assured, that the assessment is not made with reference to the valué of the property, nor with reference to the limitations on the rate of municipal taxation. It is manifest, therefore, that if the assessment is a tax, within the meaning of the Constitution of Alabama, the statute authorizing it is repugnant to section 1 of Art. XI of that instrument, which requires that “All taxes levied on property in this State shall be assessed in exact proportion to the value of such property;” and also to section7 of that Article, which provides that “No city, town, or other municipal corporation, shall levy or collect a larger rate of taxation, in any one year, on the property thereof, than one-half of one per centum of the value of such property, as assessed for State taxation during the preceding year.”
There is no longer any doubt but that organic limitations ■ on the taxing power, though expressed in general terms, apply as well to the exercise of that power through the medium of municipal corporations, and for municipal purposes, as to its exercise directly by the legislature for State, purposes; and hence the requirement that all taxes levied on property in this State shall be-assessed ad valorem, would obtain with respect to municipal taxation, even in the absence of the other provision quoted requiring such taxa
It is a fair, if not necessary inference, that the terms “taxes” and “taxation have respectively the same meaning, wherever found in Art. XI of the Constitution. The “taxes” which must be laid on a basis of value in section 1 constitute the “taxation” referred to for State purposes in section 4, for county purposes in section 5, and for municipal'purposes in section 7; and, therefore, the only municipal taxation which the Constitution requires to be assessed in exact proportion to the value of the property, is that embraced in the terms of section 7. The most liberal construction of which the language of that section is susceptible, will not admit of its application to local assessments to provide, for local improvements of side-walks. By the very terms employed throughout the Article, the taxes or taxation, whether State, county or municipal, are those which make up the general revenues of the one or the other political division, as the case may be; revenues which come from all the property in the territory, and go to defray general governmental expenditures, as distinguished from special outlays to provide for purely local exigencies. With respect to section 7, this is made to appear with great clearness, by its reference to the property to which the limitation it imposes is made to apply, and by its requirement as to the assessment upon which the municipal levy must be predicated. Not only is the levy by any city to be made “on the property thereof,” i.e., the whole taxable property thereof, but it must be made on “such property as assessed for State taxation during the preceding year.” No such thing is known, or was known when the Constitution of 1875 was adopted, or had ever been known, as local assessments of property for State taxation. The State assessment, upon which the only municipal levy treated of in the organic law is required to be based, is a general assessment of all property within the corporate limits, and is intended, as the provisos to section 7 show, to provide a fund for the general expenses of the city government. The city’s levy there limited must be put upon the whole property taxed by the State, at the valuation fixed by the State’s agents. This necessarily and wholly excludes any idea of a local assessment of particular property for any
Having attempted to demonstrate that the assessment here could not have been made under the provisions of the Constitution, either, as it was made, on a basis of benefits, or even on a basis of the value of the particular property, it next becomes necessary to determine, whether the organic law is exclusive of all other assessments against property than those of which it treats, in such sort as to amount to a prohibition upon the legislature in respect to an assessment of the class under consideration. It is not questioned but that the power which this statute undertakes to delegate to the municipality of Birmingham is a part of the taxing power inherent in all government, and without limitations other than those expressed in the organic law. It is equally free from doubt, that the power of taxation is never to be taken to be surrendered by intendment or implication, and that without an expressed surrender, clear and explicit in its terms, it must be held to reside undiminished in the legislature. — Glasgow v. Rouse, 43 Mo. 479-489; Baltimore v. B. & O. R. R. Co., 48 Amer. Dec. 531; Battle v. Mobile, 9 Ala. 234; s. c., 44 Amer. Dec. 438, n. 441; 2 Dillon Mun. Corp. § 752.
Are the provisions of Art. XI, referring as we have seen
On the other hand, the decisions in three or four States are to the effect, that local assessments of this character can not be made under constitutional provisions requiring equality and uniformity of taxation and assessments in proportion to the value of property. The leading case maintaining this view is that of Chicago v. Larned, 34 Ill. 203. The conclusion in that case may, perhaps, finds some justification in the peculiar phraseology of the constitutional provision supposed to bear on the question, though an opposite conclusion was reached by the Virginia court on substantially the same provisions. — Norfolk v. Ellis, supra. The effect of this Illinois decision was subsequently remedied by an amendment of the Constitution. The Supreme Court of Arkansas, in Pevy v. Little Rock, 32 Ark. 31, followed this Illinois decision, and another by the Wisconsin court ( Weeks v. Milwaukee, 10 Wis. 242, which is, perhaps, also referable to peculiar terms of the Constitution, and which, at most, only imports doubt as to whether the requirement for uniformity of taxation applied to and defeated local assessments), and held such local assessments could not be authorized under a constitution which required property to be taxed uniformly and according to value. This Arkansas decision is not reconcilable with the earlier case of McGhee v. Mathis, 21 Ark. 40, on substantially the same point. A like conclusion has been reached in Tennessee and Colorado, but, as in the Illinois case, the terms of the organic law, which were supposed to enforce the result, were something more than general requirements for uniformity and equality of taxation and assessments on the basis of value. — Palmer v. Way, 6 Col. 140; McBean v. Chandler, 9 Heisk. 349. When to these cases are added those of Mobile v. Dargan, and Mobile v. Royal Street R. R. Co., decided by this court (which will be presently considered more particularly), it is
We now recur to the two cases decided by the Supreme Court of this State, and noted above. They each involve the validity of the same statute, and were decided at the same term; the one being cited as the authority to support the other, and the one thus cited itself being, on this point, unsupported by reference to any authority. Not only is this true, but the opinion essays no argument in support of the conclusion reached, nor enters upon any consideration which it might be supposed a question so important decided, for aught that appears, as upon first impression, would have elicited. In the opinion in Mobile v. Royal St. R. R. Co., moreover, there is an intimation, that had the assessment been by benefits, instead of by frontage, the act authorizing it would not have been open to the objection of unconstitutionality. Very clearly, if the Constitution applied at all, it would have been equally fatal, whether the assessment were by frontage or by benefits, since neither mode would meet the organic requirement of assessment in exact proportion to the value of property. Mobile v. Dargan, 45 Ala. 310; Mobile v. Royal St. R. R. Co., Ib. 322.
Not only are these cases opposed to the great weight of judicial opinion in other States, and to all authoritative texts, but they are in conflict with a latter adjudication of this court. In the case of Irwin v. Mobile, 57 Ala. 6, the act declared in Mobile v. Dargan to have been repealed by the Constitution of 1868 again came under review, with reference to an assessment which had been made before that Constitution became the supreme law of the State. This court intimated such doubt of the correctness of the decision in Dargan’s Case as is implied by citing a preponderating number of authorities holding the opposite view, and by declining to again decide the point, because it was not nec
But, aside from this, the cases of Mobile v. Dargan, and Mobile v. Royal St. R. R. Co., are unsound in principle, and opposed to the great weight of authority. It is true the clause of the Constitution involved in those cases was re-ordained after that decision was made; and, ordinarily, the reenactment of a law after it has been judicially interpreted, will be held to impress the judicial construction upon it. But this is not an universal canon of construction, even where identically the same language has been employed. And in this case, while section 1 of Art. XI of the Constitution of 1875 is identical with section 1 of Art. XI of the Constitution of 1868; yet the presumption that the Convention of 1875 intended that section should bear the construction put on it in Dargan’s case, is rebutted by the succeeding sections of that Article, which are new to the Constitution of 1875, and which demonstate that the framers of the pi'esent organic law had in mind, and intended to provide for, regulate and limit, in and by the ordination of Art. XI, only general taxation for general government purposes, State, county and municipal. The rule of construction referred to, it thus appears, rests upon a presumption of intention which is rebutted by the language employed by the makers of the present Constitution. We can not give it any operation in this case, and we can not follow the cases relied on, even had their soundness not been alfeady drawn in question in the case of Irwin v. Mobile, supra.
Eeversed and remanded.
