57 Ala. 61 | Ala. | 1876
These cases involve kindred questions, and have been considered together. The facts of the first case, are, that the appellee, Baldwin, owning a steamboat, the “ Anne,” which is registered in the custom-house in the city of Mobile, (the county of Baldwin being in that collection district), and is employed as a ferry-boat, daily plying from the eastern shore of Mobile bay to the city of Mobile, transporting freight ” and passengers. The boat returns at night to the eastern shore, and there remains until the succeeding day, when its trips are commenced. The facts of the second case, are, that the appellants are residents of the county of Pickens, owning a steamboat, “Lotus, No. 2,” which is employed in plying from the city of Mobile to Columbus, in the State of Mississippi, transporting freight
It is apparent the material question presented is the liability of the vessels to municipal taxation, and the solution •of this question depends on the extent of the power to impose taxes which the legislature has conferred on the city authorities. For, “it is a principle universally declared and •admitted, that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred.” — Dillon • on Mun. Corp. § 605. The thirty-seventh section of the charter, or act of incorporation of the city of Mobile, empowers the mayor, aldermen and common council “to lay taxes upon the real and personal estate,” &c., within the city. The tax to be laid in pursuance of an assessment and valuation thereof. The fifty-fourth section authorizes the imposition of a tax on itinerant or transient merchants, steamboats or other vessels, remaining in said corporation less than one year. When the thirty-seventh section is read and considered in connection with other provisions of the charter, it is clear the tax thereby contemplated is an annual tax on the value of property, which, though personal, has a situs within the city as fixed and permanent as its nature permits, and a ■change of which is not contemplated. The fifty-fourth section contemplates a tax on merchants not having a fixed residence within the city, or not there pursuing their business for the length of time which would subject them to an annual tax — a temporary, as distinguished from a permanent business. It also contemplates a tax on steamboats -or other vessels which may have a temporary situs within the city, so that if they remained during the-tax year they would become liable to the annual tax assessed on such property, not remaining one year, yet being within the •city, not casually, or while in transitu, or merely in the ordinary course of business or commerce, but temporarily incorporated with the property of the city, and there kept or maintained, because of the advantages which may be there -derived. There may be steamboats which come into Mobile to navigate the waters flowing into Mobile bay, during the winter and spring, when these streams are navigable by boats of a larger size than can navigate them at the other .seasons of the year, and when cotton and other agricultural products, the principal articles of water transportation, are
The'appellee, Baldwin, employed the steamer “Anne,” only according to its capacity for use, from his domicile to the city of Mobile. The city was one of the termini of its daily trips. "When not employed, the mooring place of the boat was not within the city, but at the domicile of the appellee. This was the point from which the trips were commenced, and to which the boat returned when these were concluded. A stage-coach, or a market-wagon, or other vehicle, plying daily to the city, returning daily to the home of its proprietor, without the city, or the horse which one may daily ride into the city, remaining there on business or pleasure during the day, would have been as fitting subject of municipal taxation. The situs of these would have been as ■ completely separated from the domicile of the owner as was the situs of this boat.—St. Charles v. Noble, 51 Mo. 122. It was not intended by the legislature, in conferring the power to tax transient or itinerant steamboats, or other vessels, to obstruct ingress, egress, or regress to the city, or impose burthens on its commerce. The purpose was to subject to taxation property, which, because of its incorporation with the property of the city, derived protection and benefit from the municipal government. The words transient gr itinerant are not to be accepted in their broadest sense. If they were, they would embrace every merchant traveling to, or passing through the city on his business, though his actual locality was elsewhere, and every vessel that might touch at the city, though driven there by the stress of weather. The sense in which they are used is illustrated by a general law, ■enacted at the samé session of the legislature with the charter, entitled “ an act for securing taxes from transient dealers.” — Pamp. Acts 1865-6, p. 36. This act declared all persons engaged in the sale of goods, &c., who had com
Whether the tax on the “ Lotus ” can be maintained, the facts stated in the bill are not full enough to justify us in determining finally. The legality of the tax is assailed by the bill on no other grounds than that the residence ordomicile of the owners was without the city; that the boat,, while lying at the wharves in Mobile, was oh the high seas, and because the tax was assessed against the boat, and not the owners. If in this last respect the assessment is erroneous or irregular, a new assessment which may be made under the charter, would cure the defect. The assessment of personal property should be made to and against the owner, if “ lie be known. If he is unknown, the fact should be so stated, and the assessment maybe on the property, describing it properly. An erroneous or irregular assessment does not justify the interference of a court of equity to restrain the enforcement of the tax. — Cooley on Taxation, 540.
In Gold Life Insurance Co. v. Lott, 54 Ala., we held a court of equity should not, by injunction, interfere to restrain the collection of State and county taxes, unless in addition to illegality, hardship, or irregularity, the case was brought within gome of the established principles of equitable jurisdiction. It is said by Mr. High: “It will be found on examination that courts of equity have been inclined in the case of assessments by municipal corporations to relax somewhat the stringency of the rule of non-interference as applied to the collection of State taxes. Though it is difficult to perceive any sufficient reason for such distinction, yet the distinction itself remains.” — High on Inj. § 369. He adds: “ Though relief by injunction is more freely granted in cases of municipal assessments, still if the objections may be urged and the grievances adjusted in a court of law, equity will not interfere with the assessment.” — Ib. § 370. There may be cases in which a court of equity will interfere to enjoin municipal authorities from usurpation or abuse of power, affecting injuriously, the citizen or his property, within their jurisdiction. A tax may be levied, for a purpose wholly unwarranted, affecting all the property and all the citizens resident within the territory of the municipality, and its collection may involve such peril to the citizen, or such multiplicity of vexatious suits, that the court in the exercise of its power to confine corporations within the limits prescribed by their charters would, by injunction, restrain the levy and collection. When such a case arises, it may be that the stringency of the rule laid down in Alabama Gold Life Insurance Co. v. Lott, can be relaxed. But, in cases like the present, of an assessment on personal property, affecting only
In the second case, the demurrer was properly sustained, and the decree must be affirmed.