Mobile & Girard R. R. v. Peebles

47 Ala. 317 | Ala. | 1872

B. F. SAFFOLD, J.

The appellants filed the bill to remove a cloud from their title to certain property, and to cancel a deed obtained by the appellee, Peebles, under a sale of the property made by the tax-collector for the payment of taxes alleged to be due upon it.

The complainants aver that under the revenue law of 1868 they were liable to pay a stated amount of State and county taxes on their property in Bullock county for the year 1869, and on account of their default in paying ten per cent, damages on the amount, and certain costs and fees in addition, had accrued against them; that the general assembly, by an act approved February 9,1870, remitted the tax due to the county, and all the penalties incurred, on conditions which they had fully complied with. But, notwithstanding this compliance, and against the protest of the complainants, both before and at the time of the sale, the tax-collector had sold the property for the payment of the tax and the penalties so released, and the defendant Peebles had become the purchaser, and had received a conveyance of the same from the proper officers. Peebles had notice of the matters alleged, and purchased not for himself, but for the county of Bullock. The purchase-money has not been paid, but the commissioners’ court ordered the county treasurer to give a receipt to the tax-collector for the amount.

The chancellor held the act of February 9,1870, amendatory of the revenue law of 1868, to be unconstitutional, and denied the relief asked.

It is claimed that this act violates the State constitution by encroaching upon the pardoning power vested in the executive department, (Art. 5, § 11); by withdrawing the properly of a railroad corporation from taxation, (Art. 13, § 4); by amending an act without containing the act oi section so revised, (Art. 4, § 2); and by depriving the county of the right to collect the tax which it had already assessed.

No elaborate argument is needed to dispose of these propositions. The power of the governor to reprieve, commute and pardon is confined to offenses for which there may be conviction and punishment. The non-payment of taxes is not made such an offense by any law of the State. The money penalty for the default is only an increased taxation.

The property of the corporation is not exempted from taxation. The State has only exercised its admitted power of selection and regulation of the subjects and mode of taxation, in a way peculiarly wise and just. The roadbed and rolling stock are withdrawn from taxation for the use •of the counties, because one is a highway, and the other can not be said to be property situated or belonging in any county. But both are taxed for the use of the State. The tax levied on these by the counties for 1869 is remitted.

A vested right which it is not competent for the legislature to take away is one springing from contract, or from 'the principles of the common law. The general expenditures of the county are incurred in the administration of the State government, and to meet these the State makes provision in its general revenue laws. The beneficial interest of a county in a tax collected for its use under this general law is nothing more than its share of a public fund apportioned by the State with reference to wealth and population. There is no element of a contract about it.- The remission of the county tax did not impair the obligation of any contract.

The only amendment of the revenue act of 1868 made is the revision of its twenty-fourth section, which is set out. The revising law having changed the former one, its second section merely gives the change a retroactive effect.

2. The jurisdiction of chancery is sustained by reason and cogent authorities. The company remained in possession of its property, the purchaser making no attempt to assert his rights. In two years, the right of redemption might be lost. The invalidity of the sale was not apparent from the conveyance, and the proofs of it might be lost by time. In the meanwhile, a cloud was cast over the title of the complainants injurious to them, and significant of trouble in the future. — Smith v. Pearson, 24 Ala. 355; Hamilton v. Cummings, 1 Johns. Ch. R. 520: Elliot v. Piersol, 6 Peters, 95.

The decree is reversed; and a decree will be entered in this court, in accordance with the prayer of the bill.