Mayor of Mobile v. Dargan

PETERS, J. The main allegations of the bill in this case are not denied, so far as the facts alleged therein are concerned. This leaves but a single question to be determined in order to settle the equities of this case. That question is this: was th & fifty-eighth section of the act to incorporate the city of Mobile in conformity to the constitution of this State, at this date, or not ? This law is entitled “ an act to incorporate the city of Mobile,” and was approved February 2, 1866. The section referred to is in these words : Sec. 58. Be it further enacted, That it shall be lawful for the mayor, aldermen and common council of the city of Mobile to pave, shell or plank, any street or — 316 — streets, part or parts of a street, within the limits of said city, whenever^hey deem it expedient, at its own expense; or it may be done upon the written application of the owners of at least one-third in quantity of the real estate located on each side of the street or streets, part or parts of a street which it may be proposed to have thus improved; which said paving, shelling, or planking, shall be at the expense of the owners of the property located upon any street or part of a street so improved, in such proportion as that each piece of said property shall pay of the expense of any such improvement a fractional share thereof equal to its front on any such street or parts of a street so improved; and after such improvement is complete, for the purpose of ascertaining the portion of said expenses to be paid by the owners of -such property, it is hereby made the dirty of the city surveyor and the mayor of said city to certify in writing the proper amount due from each owner, or piece of property whose owner is unknown, to the tax collector of said city; which amounts, so certified, shall respectively be levied on each piece of said property, and shall be collected by said corporation in like manner as taxes on real estate are authorized to be collected under the provisions of this charter, and when so collected the tax collector shall pay the same to the city treasurer.” Pamph. Acts 1865-66, pp. 223, 202. The charter provides that the assessment roll of taxes made in said city shall have the force and effect of a judgment at law against the individual assessed with such taxes; and the real and personal property of the person so assessed may be sold by the tax collector to satisfy the same, in the event that such taxes are not paid as required by said charter. — Pamphlet Acts 1865-66, p. 217, §§ 38, 39. These are the chief provisions of the charter of the city of Mobile necessary to be noticed in this opinion. .It is contended by the eminent counsel for the appellee, that this section of the act above quoted, so far as the powers attempted to be executed under it to enforce the collection of the sum of money assessed against the estate which he represents, is unconstitutional and void. There must be some power lodged somewhere, compe — 317 — tent to make all laws necessary for the good government of the people of the State; that is, a power to legislate wherever legislation may be needed. The exercise of such a power is necessarily incident to all governments. — Pickett, ex parte, 24 Ala. 91, 96. In this State, this power to make laws is specially granted by the people to the general assembly. — Pickett, ex parte, 24 Ala. 91, 96. It is an affirmative grant of the whole law-making power to a special body; and such a grant confines the authority thus given solely to this body. The people, in whom the supreme and ultimate authority is vested, never pretend to make laws in a body, sui generis. They never assume to legislate, except through the instrumentalities of a government. Then, the general assembly, within the limit of its powers, is the only legislative body of the State, after the government is once ordained and established under a State constitution; except, perhaps, when the people choose to exercise their sovereign power by a convention. — Const. Ala. 1819, art. 2, § 1; art. 3, § 1; Const. Ala, 1868, art. 3, § 1; art. 4, § 1; Cohens v. Virginia, 6 Wheat. 264, 394, 395; Penhallen v, Doane's Adm'r, 3 Dal. 93; Livingston v. Moore, 7 Pet. 546; Jameson’s Const. Conv. p. 17, § 18, et seq. All the branches of the government are created by the people, and the officers who are to discharge the duties thus imposed are of their selection. All act under the same oath of fealty to the Constitution. They are co-ordinate and independent in their several departments. It is not to be presumed that the people are not competent to make selection of proper agents to fill their offices, or that the persons so selected are incompetent or unfaithful. All indeed may err, for error is human; and error may be and should be corrected. To do this is one of the chief duties of this tribunal. This is emphatically a court for the investigation of errors, and for their correction. This power necessarily reaches not only a violation of the laws, but also a violation of the constitution, which is the law of laws. And although the duty to set aside a legislative enactment as void for want of conformity to the State constitution is one of very great delicacy, and almost always is attended with very great difficulties; nevertheless it is a duty this court — 318 — cannot shun. Chief Justice Marshall, whose mind often ascended to heights of little less than prophetic grandeur, in discussing the great questions necessary to settle and harmonize our complicated system of government, has left us a maxim on this subject full of his profound judicial wisdom. He says : “It is most true that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislative may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties a case may be attended, we must decide it if it is brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them.' All we can do is, to exercise our best judgment and conscientiously perform our duty.” — Cohens v. Virginia, 6 Wheat. 264, 404. At the same time, this high power is to be exercised with the greatest caution. The ,unconstitutionality of a legislative enactment must be clear and palpable, before it can be so declared. Therefore, no enactment of the general assembly of the State will be assailed for want of conformity to the constitution, unless it clearly invades some provision of that instrument. Fletcher v. Peck, 6 Cr. 87, 127. The city of Mobile, in its corporate capacity, is a public municipal corporation, and as such it is subject to the control of the government of the State and the laws and constitution of the" State. Ang. & Ames’ Corp. p. 27, §§ 30, 31, et seq.; Trustees Univ. Ala. v. Winston, 5 S. & P. 17; 3 S. Cond. Rep. 280. It is therefore subject to be limited in its powers by the constitution of this State of 1868, as a law of the State. It is insisted by the eminent counsel for the appellee, that the fifty-eighth section of the act above quoted is repugnant to section twenty-five of Article I, and section one' of Article IX, of said constitution; and for this reason it is void. Said section one, of Article IX, is in these words; “All taxes levied on property in this State, shall be — 319 — assessed in exact proportion to the value of such property; Provided, however, That the general assembly may levy a poll tax, not to exceed one dollar and fifty cents on each poll, which shall be applied exclusively in aid of the public school fund.” The assessment complained of in this instance is obviously not such a tax as is here spoken of. The word tax, like every other word, limits its own meaning. Here taxes are divided into two classes : such as are levied on the property, and such as are levied on the person. By the act above quoted, the tax is not assessed according to the value of the property attingent to the improvement, but “ according to its front on any such street or parts of a street so improved.” — § 58, supra. This is not now a legitimate mode of levying a tax in this State. It evidently violates the constitutional rule above laid down. So far, then, as this portion of said charter is involved, the present constitution of the State operates as a repeal of it. It is not continued in force, because it conflicts with this constitution. — Pamph. Acts 186-, p. 7; Act 29th July, 1868. The rule of assessment laid down in the constitution is a simple and a plain one, and it is the only rule prescribed. It would, then, be unwise to permit it to be displaced by a substitute, though the. latter might effect the same end. The safer doctrine is, that the rule prescribed is the only rule. Expressum facet cesssare taciturn.— Broom’s Max. 278, 279, marg. The other portion of the constitution invoked by the appellee is in the following words : “ That private property shall not be taken or applied for public use, unless just compensation be made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; Provided, however, That laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations, and for works of internal improvement, the right to establish depots, stations, and turnouts; but just compensation shall, in all cases, be first made to the owner.” — Const. Ala. 1868, Art. I, § 25. A tax is an orderly rate levied on the property of the citizen according to its value, or a fixed sum levied on — 320 — his person, for the public use. And as it is for the use of all, it ought, in strict justice, to be levied on the property of all. Here the levy is not upon the property of all the citizens for a public purpose, but it is. on the property of a few, for the public use — for the improvement of a public street. Most clearly, all taxes are intended to be as nearly equal as possible. If they are local, and for community or local purposes, the whole community is presumed to be interested in their appropriation; and for this reason all are required to contribute to supply them. A tax levied for national purposes, is levied upon the whole people of the nation ; a tax levied for a State, falls on all its people; and in like manner, a tax levied for a county is paid by the whole people of the county. So must it be with a tax levied on the people of a city or town, in order to make it just and equal. Such levies may include every thing that may be called property — every thing that can be owned. Such taxes, to make them just, must be in proportion to the value of the property upon which the burden is imposed, and they must be levied upon all, and not upon' a few only. This is said to be an inherent principle of all taxation. It is the limit that use affixes to the word. Weeks v. Milwaukee, 10 Wis. 258; Ryerson v. Uttley, 16 Mich. 269; Merrick v. Amherst, 12 Allen, 504; Wells v. Weston, 22 Mo. 385; Covington v. Southgate, 15 B. Mon. 491; Morford v. Unger, 8 Iowa, 82; Const. Ala. 1868, Art. IX, § 1. If this, then, is not a tax in the just and proper sense of that word, it is a seizure of the private property of the citizen for public use, without his consent, and without first making to the owner just compensation for the same. This the constitution of the State forbids. Const. Ala. 1868, Art. IY, § 36. Besides this, the city charter only authorizes such improvements, as the one here in question, to be done at the expense of the owner, as provided in the 58th section, upon “ the written application of the owners of at least one third in quantity of the real estate located on each side of the street or streets, or part or parts of a street, which it may be proposed to have thus improved.” This very clearly requires the owners of the property on the one — 321 — side, as well as on the other, to the extent of one third in quantity of the real estate, to join in the application. If all the owners on one side join, and less than one third in quantity of those on the other, this will not suffice. The bill alleges that this is the case in this instance : “that less than one third in quantity of the owners of the west side of Royal street made such application, (if any did).” It is also charged in the bill, that the application on the part of Slatter’s estate was made 'by the administrator of that estate, and not by the heirs of Slatter. Such an application is not within the meaning of the word owner, as used in the statute. The administrator is not the owner of the real estate of the deceased, as administrator. He can not charge the land with the payment of a debt, nor has he possession of the land, except for the purpose of the trusts dependent on his office as administrator. The owner is the heir, where there is no will, and the devisee, where there is. The administrator can neither pledge the lands of the deceased, nor charge them with the payment of debts, except for the purpose of his trust. He is not authorized to improve nor to pay for improvements, except for the purpose of keeping the property in repair. — Patton v. Crow, 26 Ala. 426, 432; Pettit’s Adm’r v. Pettit’s Heirs, 32 Ala. 288, 311 ; Avary, Adm’x, v. Avary et al., Jan. T. 1871; Johnson v. Gaines, 8 Ala. 791; Willis’ Adm’r v. Willis’ Heirs, 9 Ala. 330; Kirkman, Abernathy & Hanna v. Benham, 28 Ala. 501. The above allegation of this bill, in this case, is sustained by the proofs. The proceeding here was not under the ninety-fourth section of the act of incorporation above cited, and it can not be helped by it. And that' section, so far as it applies to the action of the city authorities in this case, is also vicious to the same extent with section fifty-eight, and for the same reasons. — Pamph. Acts 1865-6, p. 233, § 94; Const. Ala. 1868, Art. XIII, § 16. The decree of the chancellor in the court below is affirmed, with costs in this court and in the court below.