Tallassee Manufacturing Co. v. Glenn

B. F. SAFFOLD, J. The appellant obtained an injunction against the appellee, as tax-collector of Elmore county, to restrain him from selling its property for the payment of certain taxes levied upon it. The bill filed for the purpose alleged, that a controversy at law was pending between the parties about the matter, when the legislature, at the instance of the appellant, passed an act authorizing and appointing the [491] auditor to ascertain what amount of taxes in question the company was liable to pay, and to certify the same to the tax-collector, who should receive it in full satisfaction, provided the company would pay all of the costs which had accrued in the litigation; that the auditor had complied with the act, by ascertaining and stating the account, and informing the tax-collector thereof; but, on the tender of the amount so fixed, and the costs of the litigation, by the complainant, the tax-collector refused to accept it. The injunction was dissolved, upon the denials of the answer. Afterwards, the bill was amended, by more specific allegations of the complainant’s compliance with the terms of the act of the legislature. On final hearing, it was dismissed for want of equity. The appeal embraces both decrees. 1. A sale of land for the payment of taxes, under a judgment at law, affirmed in the supreme court, in which the liability of the property was determined, would leave the owner little remedy, except in his right of redemption. If such sale ought not to be made, equity only can prevent it. 2. If the act of February 8, 1872, is valid, and was complied with, it gave the complainants rights which are denied by the decrees. The objections alleged to its validity are: 1st, that it is an exercise of judicial power by the legislature j 2d, that it is an appropriation of money without a two thirds vote of the legislature; 3d, and that its subject is not expressed in the title. The authority of the State to make a contract, and to allow suits to be instituted against itself by its citizens, musí be conceded. A party to a suit upon a contract must, from necessity, have the power to compromise the suit. The ability to do so is inseparable from the capacity to make a contract, and to be sued on it. A compromise, or submission to arbitration, of demands and claims, is a contract, supported by the consideration of mutual promises. When the prevention of litigation is the object, no investigation into the character or value of the claims submitted will be entered into, for the purpose of setting aside a compromise, if the parties entering into it thought at the time that' there was a question between them. 1 Parsons on Contracts, 364. It is enough, if there be an actual controversy, of which the issue may be considered by both parties as doubtful. In this case, there was litigation virtually between the State and the complainant; and the legislature, at the instance of the other party, appointed the auditor to settle the controversy. No manner of doing so was dictated, further than that the company, admitting its liability for some amount, was required to pay the cost of the suit which it had instituted. Whatever the auditor and the company agreed upon, the State [492] consented to abide by. Tbe auditor was not made a judge, because, in that case, the company would not have been left at liberty, by refusing to pay the cost, to nullify his decision. The foregoing argument as well establishes that there was not on the part of the State a giving away of money. The subject expressed in the title is, “ For the relief of Tallassee Manufacturing Company No. 1.” This is a private act, and is a measure of relief for the company named. It would have been more in conformity with the constitution, if the nature of the relief had been more clearly expressed in the title. But its character of privacy, and the limitation of the subject to that expressed in the title, dispense with much of the reason for the constitutional provision, in the want of public concern in the matter. Such an act could scarcely interfere with the interests of other persons. We think it sufficiently conforms to the constitution. 3. The costs of the suit intended to be compromised are such as would have followed a judgment adverse to the company. Attorneys’ fees would not be included. To ascertain them would require a separate suit, and independent proof, especially if the compromise had proved effective before the judgment on appeal. The allegations of the amended bill sufficiently aver due diligence on the part of the company in accepting the terms of the act. The'decrees are reversed, and the cause is remanded.