58 Ala. 546 | Ala. | 1877
Lead Opinion
Section 15 of article 4 of the Constitution of 1868, ordains “that all bills for raising revenue shall originate in the house of representatives, but the senate may amend or reject them as other bills.” Substantially the same provision is found in all our constitutions, from that of 1819 to the last one in 1875. It has been suggested that this is a mere rule for the legislature, a disregard of which does not invalidate the law. It is known to the profession that this rule was adopted from the British constitution; and that it was engrafted thereon, because the House of Commons, in their Parliament, is the only popular department of their government, chosen by the people, and directly accountable to them. In that country, unlike the rule with us, it is the rule that the House of Lords can make no amendment of such bills, but must take them, without amendment, as they leave the House of Commons. This rule is guarded with sedulous care, and is treasured as fundamental, in the pres
With us the reason of the rule does not exist to the extent it does there, for each house of the legislature is elected by the people for a short term, and each is alike accountable to the popular will. But whether there be a reason for its maintenance or not, it has been a canon of the Federal Constitution from the date of its adoption, and of the Constitution of this State from the time of its birth. A rule thus sanctioned and preserved — thus imbedded in the very marrow of our system — we feel not at liberty to disregard. We adopt, as our own, the language of one of the soundest and most thorough thinkers and jurists, who have written on the subject of organic law, embodied in our constitutions:
“The courts tread upon very dangerous ground when they venture to apply the rules, which distinguish directory and mandatory statutes, to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and. permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all the departments of the government must at all times shape their conduct. . . We are not, therefore, to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in our instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can foe exercised as well by the delegate, as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only.” — Cooley Oonst. Lim. 78.
We think the only safe rule for interpreting clauses of the Constitution which command certain things to be done, or certain methods to be observed in the enactment of statutes, is to hold that when it is affirmatively shown by legal evidence that in the attempt to legislate, some mandate of the Constitution has been disregarded, such attempt never becomes a law. We do not mean to be understood as affirming that in all cases the silence of the journal proves some constitutional requirement was omitted. It is only when the Constitution requires that certain things shall be spread on
We have not been able to find any direct judicial determination of the question, how far a disregard of the clause of the Constitution, copied in the opening of this opinion, affects the validity of a statute enacted to raise revenue. In Harper v. Commissioners of Elberton, 23 Geo. 566, it was conceded, rather than decided, that such act would be unconstitutional. A controversy arose on this question between the two houses of the 42nd Congress, but it resulted in no practical solution. — See note to section 880, 1 Sto. on Const. 4th ed.
The bill to be entitled an act “ To amend an act entitled an act to establish revenue laws for the State of Alabama,” and which is published as a law approved February 9,1870,— Pamph. Acts, 87 — originated in the Senate, as is shown by the journals of that session. We have carefully examined the journals, and can safely say this is affirmatively shown. The question arises, was this a bill for ‘raising revenue’ within the meaning of the Constitution ? It is clear to our minds that increase of revenue is not implied in the language to ‘raise revenue.’ The transitive verb, ‘to raise,’ in this connection, means, “to bring together, to collect, to levy, to get together for use or service; as to raise money, troops, and the like.” — Webst. Dictionary. The precise meaning in this clause is, to levy a tax, as a means of collecting revenue. See Harper v. Commissioners of Elberton, supra.
The act in question, in one sense, reduced the taxes; for it assumed to relieve certain railroad property from county taxation. But it was, nevertheless, a bill to raise revenue. It assumed to repeal section 24 of the revenue law of 1868 ; levied a tax for State purposes on the right of way, road bed, side-track, main-track, locomotive engines, passenger, freight, platform, construction and other cars, of all railroads in this State, and constituted the auditor both assessor and collector of this tax. If the bill became a law, the repeal of said section 24 of the act of 1868, effected thereby, left its own provisions as the only levy of a tax on railroads and their rolling-stock, and the only authority for assessing and collecting such tax; for, by such repeal, said section 24 of
The act “ To establish revenue laws for the State of Alabama,” approved December 31, 1868 — Pamph. Acts, 297 to 340 — declares the general subjects of taxation in sections 4 to 13, inclusive, but makes no mention of railroads. Sections 19 to 23, inclusive, declare the duty of tax-payers to render to the tax-assessor of the county a “complete list” of these general subjects of taxation. Sections 29 to 40, inclusive, define the duty of the tax-assessor in assessing the taxes. He is required to fill up an assessment list for each tax-payer, which is to be signed and sworn to by the taxpayer. — Sec. 23. These assessments are to contain the “ amount or value of each item, as valued by the assessor, upon which they are liable to pay taxes.” — lb. All these are to be entered in a book, &c., by the assessor. — Sec. 37. None of these provisions mention railroads. Other and later provisions relate to licenses, with which the assessors have nothing to do. All these provisions relate to State taxes, as we shall hereafter show.
Sections 24 to 28 of the act, relate to railroads and telegraph companies ; and the provisions in regard to these are entirely different. As to these, the assessor has nothing to do with the sworn list of the tax-payer, nor in the matter of fixing the values. These duties are confided to the auditor, who is to notify the assessor thereof. The assessor, it is true, is required to assess the local property of the railroad in his county; but of the road proper, and its rolling stock, he has nothing to do with the assessment. He simply assesses, and adds the-other local property to the assessment, which has been made and furnished to him by the auditor. Nor has the board of equalization, sections 97 to 101, inclusive, any power or jurisdiction over these assessments made and furnished by the auditor. We have thus shown that under the act of 18’68, two distinct systems of assessment are provided : One, of general subjects of taxation, which is required to be made by the assessor; the other, of railroads and their rolling stock, which duty is cast on the auditor. There has been no law, either on or since December 31st,
“ Sec. 103. That it shall be the duty of the court of county commissioners, immediately after the adjournment of the board of equalization, to proceed to levy the amount of taxes required for their county for that year, not to exceed the rate levied by the State.”
Levy and assessment have very different meanings. The levy of taxes is a legislative function, and declares the subjects and rate of taxation. — Burroughs on Taxation, 194; Coolv on Taxation, 244^5. Assessment is quasi judicial, and consists in making out a list of the tax-payer’s taxable property, and fixing its valuation or appraisement. — Hilliard on Taxation, 290. Taxable property is here used in its broad sense, and embraces all subjects of taxation, on which a tax has been levied by the law-making power. The distinction is the difference between prescribing a rule of action and administering that rule to persons and subjects that fall within its provisions. The legislature levies State taxes, and the tax-assessor assesses them, except the tax on railroads and their rolling stock, which is assessed by the auditor. The court of county commissioners levies the. county tax, providing for no assessment, but adopting the State assessment, as the basis and measure of the tax-payer’s liability. It also adopts the aggregate of the State assessment as the basis and postulate by which it adjusts the county levy, so as thereby to raise the required sum to meet the county wants. These are the data which enable the court to determine the proper per centage to be levied on the State assessment, to provide for county expenses. Hence the levy, per centum, will be greater or less, in the proportion which the county demands bear to the aggregate of the State assessment. State taxes are assessed; county taxes are only levied. A law which levies a tax, and provides for its assessment, will not justify the collection of the tax until the assessment is first made. To attempt otherwise, would be equivalent to an attempt to execute a law against a person or thing before it had been judicially ascertained and detertermined that such person or thing was amenable to its provisions. There must
In the case of the County of Perry v. Selma, Marion (& Memphis Railroad Company, it is shoAvn by the averments of the petition that no county tax was levied for the years 1870-1-2-3-1. In the acts of 1868 and 1875, “To establish revenue laws for the State of Alabama,” are clauses which-empower the assessor and collector, in certain conditions, to assess property for taxation, which had escaped assessment during the previous years. — See sections 36 and 50 of the act of 1868, and sections 32 and 46 of the act of 1875. See, also, Lehman, Durr & Co. v. Robinson, during the present term. Those sections give no authority to the assessor or collector in either of the cases under discussion; because, first, this is not a case of property which has escaped assessment for any previous year. All the railroads, so far as we are informed by the records, were assessed, each year, for State taxes. The property, then, had not escaped the assessor, and had not escaped taxation. Second, the assessor had no right to assess railroads or their rolling stock for taxation, and hence it can not, under fair construction, be affirmed that they had escaped the tax assessor. The auditor was the tax-assessor for these, and they had not escaped him. If they escaped any official authority, it was the court of county commissioners, and they escaped levy, not assessment. Third, as there is no authority to assess any property for county taxes, and the railroads were assessed for State taxes, it is not true that they escaped any assessment which the law authorizes to be made. — See State of Mo. ex rel. v. Severance, 55 Mo. 378-383.
There is no power conferred by any of the statutes to assess escaped taxes, except that given to the assessor and collector in the sections above referred to. There is no power given to levy county taxes, save that conferred on the court
We bold that tbe court of county commissioners bas no authority to levy taxes on railroad property which has escaped them during previous years. Such authority can only exist by statute, and tbe statute bas not conferred it.
Another argument: Levy' of taxes for county wants, is an express, fixed per cent, on tbe State assessment. Tbe gross amount of such assessment, and tbe wants for county support, furnish tbe rule by which tbe needed per centage is arrived at. If tbe State assessment, which furnishes tbe standard for adjusting tbe county levy, be materially augmented, then the rate per cent, necessary to raise tbe requisite county revenue, will be proportionately diminished. If a first levy, on a part of tbe State assessment, yielded sufficient county revenue, then a like per cent, levied on a materially increased assessment, would necessarily yield a surplus. This, however, would furnish no ground for vacating the levy, if it were otherwise made according to law.
In tbe case of Perry County v. Selma, Marion & Memphis Railroad Company, tbe petition avers tbat tbe county tax for 1869, was levied by tbe court of county commissioners. Under tbe act approved February 9th, 1870, which we bave above declared to be unconstitutional, tbe auditor instructed tbe tax-collector not to collect of tbe railroad company tbe county taxes for tbe year 1869 ; and tbe tax-collector obeyed him, and did not collect tbe taxes. Section 120 of tbe act of 1868, is relied on as justifying .this action of tbe tax-collector; and further, as settling by a judicial determination tbat the railroad can not be held accountable for tbe county taxes of that year. Tbe authorities rebed on in support of this position
“ Sec. 120. That the auditor of State shall, from time to time, prescribe such forms and give such instructions as he may 'deem necessary to carry into effect the provisions of this act, and decide all questions which may arise as to the true construction of this act, or in relation to the duty of any officer under this act; and the instructions thus given shall be obeyed by, and the decisions thus made shall be binding upon all county and municipal officers.”
We consider it unnecessary to decide how far decisions made by the auditor would be binding, and conclusive as judicial decrees,, on questions therein embraced. All the provisions of the section copied, relate, in terms, to the revenue law approved December 31, 1868. The instructions of the auditor to the tax-collectors, not to collect county taxes levied on railroads and their rolling stock for 1869, were given,, not under the revenue law of 1868, but under the attempted statute amendatory thereof, approved Eeb. 9,1879, which we have declared above never became a law. This was not a decision or instruction by the auditor, as to any matter arising under the revenue law of 1868, and hence, is not binding on the county officers. We think the railroad is liable to pay the county tax levied for the year 1869.
The only other question we consider it necessary to determine, arises on the averment of the bill of the Western Railroad Company against Chambers county, that the county tax of 1875 was levied in August of that year, when it should have been done in July, under section 93 of the revenue law of 1875. We hold this provision of the law to be directory, and that such levy made at the regular August term of the court, as this was done, is valid. — See Hilliard on Taxation, 299, et seq.; Burroughs on Taxation, 249Cooley, do. 212, et seq.
The bill of the Savanah & Memphis Railroad Company against Chambers county, contains nothing material that is not disposed of above, unless it be some averments of irregularity in the attempt to force the collection of the taxes, which furnish no ground for a bill in equity.
We have not considered the question whether a bill would lie, even if the taxes levied by Chambers county were illegal. — See Stone et at. v. Mayor, &c., of Mobile, and Mayor, &c., v. Baldwin, 57 Ala. 61. Nor have we considered the question, whether relieving railroad companies from the payment of county taxes violates article 9 and section 4 of
In the case of Perry County v. Selma, Marion & Memphis Railroad Company, the decree of the Chancellor is reversed, and the cause remanded, that the Chancellor may proceed to order the payment of the county taxes, levied for the year 1869.
In the case of the Western Railroad Company v. Chambers County, and Savannah & Memphis Railroad Company v. Same, the decrees of th,e Chancellor are affirmed.
Rehearing
ON PETITION FOR REHEARING IN THt! CASE OF PERRY COUNTY Y. SAVANNAH, M. & M. R. R. CO.
A petition for rehearing has been filed in this cause, on two grounds : First, it is contended that taxes can not be collected after the expiration of the tax year in which they are assessed, because, as it is alleged, the law has made no provision for such collection. In Hibbard v. Clark, 56 N. H. 155, a majority of the court held, that taxes levied and assessed are not a debt due from the tax-payer, which can be made a set-off under their statute. Cushing, O. J., dissented. In Finnegan v. City of Fernandina, 15 Florida, 379, — a proceeding in equity — it was decided', “A court of equity will not devise a method to recover a debt, because of failure to recover it through the ordinary legal remedies.” This had reference to unpaid taxes, resting on peculiar grounds, and materially influenced by the limited powers of the chancery court. It sheds no light whatever on the question we are discussing. The ease of Cobb v. Corporation of Elizabeth City, 75 N. C. 1, was also a question of set-off, sought to be enforced in equity. The court said: “ Debts owing by the town corporation, in whatever form they may be evidenced, can not be set-off against a demand for town taxes, unless there be a special contract to that effect.” In Cooley on Taxation, 300, it is said, “ that taxes are not debts in the ordinary acceptation of that term, and that the statutory measures are to be resorted to for their collection. Generally, no others are admissible. But the remedy by suit may be given by statute either directly or by implication.
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. But it is probably «enough in this case to maintain the proposition, that levy and assessment of taxes create a legal liability on the tax-payer to pay.
We have received another argument on the subject of collecting taxes that have been assessed,.and not collected during the year of their assessment; and we confess, ourselves much embarrassed by the present condition of our statutes. We think we may safely affirm that it has been the custom of tax collectors to collect taxes for previous years, which, for any reason, have escaped collection. We shall hereafter show there is warrant for this in the statutes. We think the
But sections 62 and 63 of the revenue law of 1868, demonstrate that the tax collector is charged with the duty of collecting delinquent taxes of preceding years. After advertisement, it is made his duty “ to offer at public sale . . all lands, town lots, or other real property, on which taxes of any description for the preceding year or years shall have been delinquent, and remain due and unpaid.” And these provisions have been preserved in every revenue law since that time.— See revenue law approved March 19,1875, sections 48, 57, 58, Pamph. Acts, 3 ; revenue law approved March 6,1876, ch. 6, § 9, and ch. 8, §§ 1, 2, Pamph. Acts, 42; Code of 1876, §§ 416, 438, 439. These provisions show what is meant by the word ascertain, and that the power of the collector is not limited to the year in which. the assessment is made. Yet, there are no words in the statutes which direct in what manner the tax collector is to be informed of delinquencies in precedent years, unless it be found in the word ascertain, in section 416 of the Code of 1876. But it may be objected that section 438 of the Code of 1876, speaks of and relates to taxes for preceding years assessed on lands only. This is true, and, we must admit, presents a difficulty in the construction we are about to give. But there is a difficulty in any conceivable construction. We have seen above that the tax collector may, and must collect, even by sale if necessary, taxes for previous years assessed on lands. Hence, we can not hold that his power to collect is limited to assessments made for the tax year in which he is collecting. Can there be a reason for giving him power to collect past due taxes on lands, which does not apply with equal force to previous assessments of other subjects of taxation? We think not. The whole theory of our tax laws forbids the idea that delinquent tax-payers, by eluding the tax collector for a season, thereby exonerate themselves or their property from the payment of such taxes. It is the duty of the tax collector to ascertain who are the insolvent or defaulting tax-payers. No discrimination between defaults in paying taxes on lands, and on personalty. He must ascertain the insolvents and defaulters. Eor what purpose ? That he may compel cob lection by garnishment. — Section 416. Then, that he may sell for taxes due for past years. — Section 438. We think the word ascertain, is without import, unless we construe it as enlarging inquiry beyond the tabulated books of assessment in the collector’s hands. It is eminently proper and serviceable, if extended to defaults of previous years. Tnus construed, this duty of the collector harmonizes completely
But let us inquire what absurd results would ensue from the opposite construction. A tax-payer, who has failed or neglected to have his taxes assessed, is liable to have them both assessed and collected, as escaped taxes, for any number of years afterwards. — Code of 1876, §§ 392, 413. While, on the other hand, the argument is, that if the tax-payer’s property has been assessed, and his only default consists in not paying the assessment during the tax-year for which it was made, he is, by his own default or dereliction, entirely absolved from all payment. We do not think our statutes admit of such construction as this.
An argument has been made before us, based on section 421 of the Code of 1876, which is in the following language : “ The tax collector; must report to the Court of County Commissioners at the April term in each year, on oath, a list of persons from whom he shall be unable to make the taxes, which shall be termed ‘list of insolvents,’ and also a list of such persons as have been overcharged by the assessor, which shall be termed ‘list of errors in assessment,’ and such court, after a rigid and searching examination of such lists and a proper correction of the same, shall credit the collector with the taxes due to the county thereon, and the probate judge shall certify such lists to the auditor, who shall allow the collector credit therefor, on his final settlement for the State taxes due thereon, and after such lists shall have been passed upon, and the credits given as herein required, the tax collector shall be, and is hereby prohibited thereafter from collecting any tax due upon any such insolvent lists.” The section then provides that the judge of probate shall distribute such insolvent claims among the notaries or justices of the several beats for collection. The argument is, that after this return by the tax collector has been acted on by the Court of County Commissioners, the tax collector is prohibited from making collection of taxes previously assessed. The extract above is part of section 1 of the act “to amend section 15, chapter 6, of an act ‘to establish a revenue code for the State of Alabama,’ approved March 6,1876.” — Pamph. Acts, 16. This branch of our revenue system had its origin
We said above that our revenue system is involved in some confusion. The following sections of the Code of 1876, show to what we refer. Taxes become delinquent January 1st, next after assessment, if not sooner paid.- — Section 361. After the 1st day of January, in each year, the tax collector must proceed, without delay, to levy upon any personal property of delinquent tax-payers. — Section 415. After the tax-collector has ascertained who are the insolvent and delinquent tax-payers — (this can not be of the current year taxes, until after January 1st, for it is only then they become delinquents), if he ascertains — finds out — that any person is indebted to or has effects belonging to the delinquent tax-payer, he must serve notice of garnishment on such person. — Section 416. On the first Monday of March, and on any day thereafter in each year, the tax collector may offer at public sale . . all lands, town lots, or other real property, on which taxes of any description for the preceding year or years shall remain due and unpaid. — Section 438. Garnishments are suits; and if the sum of delinquent taxes be over one hundred dollars, the process must be returnable to the Circuit or City Court. It is known that such suits may be pending for months before they are brought to a final trial. Yet all these varied proceedings must be crowded into a fraction over three months; for, under section 421, “the tax collector must report to the Court of County Commissioners at the April term in each year, on oath, a list of persons from whom he
In conclusion of this subject, which we have probably dwelt on at too great length, we hold that it is the duty of the tax collector to ascertain and collect taxes assessed for precedent years, which have become delinquent; and that this duty and right are limited by the acts of 1876 and 1877' — now section 421 of the Code — only to the extent that he reports tax dues as insolvent, and they are so allowed by the Court of County Commissioners. These, as we have shown, he is prohibited from collecting.
The second ground urged for a rehearing in this cause is, that so far as the petition seeks to collect taxes for 1869, it is barred by the statute of limitations. It is a sufficient answer to this argument, in the present case, that the statute is neither pleaded, nor specified as a ground of demurrer.— 1 Brick. Dig. 699, § 859. But, inasmuch as this question may be raised when the case returns to the Chancery Court, it is probably better to consider and decide it now.
We concede that a county, suing or being sued, is not exempt from the operation of statutes of limitation, which cover the action sought to be enforced. They are not privileged from suit, under the principle, that ‘time does not run against the sovereignty.’ They are not the State. — See Miller v. The State use, 38 Ala. 600; Kennehunkport v. Smith, 9 Shep. (22 Me.) 445; Armstrong v. Dalton, 4 De. 568; Lessees &c. v. First Pres. Ch. 8 Ohio, 229. But we have no statute of limitations which covers this case. — See Art. 1, Ch. 20, Tit. 1, Part 3, Code of 1876, §§ 3223 to 3231. And section 392 of the Code goes very far to show that there was intended to be no bar against the liability to pay taxes, short of the twenty years presumption of payment.
It is also contended that the (3ourt of County Commissioners of Perry, by settling with its tax collector, must be regarded as having remitted the taxes of 1869. It might be
On the single question of the tax levied for 1869, the decree of the Chancery Court is reversed, and the cause remanded for further proceedings in accordance with this opinion.
Dissenting Opinion
dissenting — mpon the subject of a -valid enactment of the act of Feb. 9th, 1870- — is of opinion that, whether the bill was properly introduced into the Senate first, was a question to be determined by the legislature, and not by the courts.
