City Council v. Shoemaker

BRICKELL, J. The charter of the city of Montgomery, as amended by the act of March 3, 1870 (Pamph. Acts 1869—70, p. 338), expressly conferred the power on the corporation to impose on all express companies a tax not exceeding five hundred dollars per annum. The charter was again amended [118] by the act of February 26, 1872 (Pamph. Acts 1871-2, p. 275), and this power again conferred in express terms. The general assembly may confer on municipal corporations the power to license or to tax trades, occupations, professions, or employments, pursued for profit within the corporate limits. Yuille v. Mayor & Aldermen of Mobile, 3 Ala. 137; State v. Esterbrook, 6 Ala. 653; Carroll & Beal v. Mayor & Aldermen of Tuskaloosa, 12 Ala. 173; Dillon on Muni. Cor. §§ 291, 632. This proposition is not questioned by the appellee; but he insists that the power of the city to impose a tax on the “ Southern Express Company,” of which he is agent, is abrogated by the act entitled “An act in relation to the Southern Express Company,” approved February 26, 1872. Pamph. Acts 1871-2, p. 9. The legislature has plenary power to alter, amend, withdraw, or repeal at pleasure, either by a general law, operating upon the whole State, or by special statute, the charter, or any particular authority conferred on a municipal corporation. It may, in its discretion, add to or diminish the corporate power, increase or remove limitations or restrictions on its exercise. Recognizing fully this power of the legislature, we cannot discover in the statute referred to a purpose to exercise it to the extent claimed by the appellee; and are clearly of opinion that, conforming to established rules of statutory construction, it is impossible to give that statute the operation claimed for it. The clause of the statute, which it is contended operates an abrogation of the authority of the city to tax the “ Southern Express Company,” is in these words : “ Nor shall any municipal corporation levy any percentage tax upon the receipts of said company.” The tax the city is expressly authorized by the provisions of its charter to impose on express companies is not in any sense a percentage tax on receipts. The section of the charter in which this power is conferred distinguishes between a specific tax on an occupation or employment, and a percentage tax on receipts. Thus, a tax not exceeding two hundred dollars per annum is imposed on each vendor of goods, wares, and merchandise, drugs and medicines, or either of them ; while on goods sold at auction, a tax of one per centum on the amount of the sales is imposed. On lawyers, doctors, dentists, &c., a tax not exceeding fifty dollars per annum is authorized. On the commission business, a tax not exceeding one fourth of one per cent, on the gross sales or receipts is authorized. There are other instances in which the distinction is observed; but these will serve to show its existence. A specific tax on a trade or employment, or particular business, is unvarying in amount, is generally incurred whenever the trade or employment is entered upon, or the business engaged in, and must be paid without regard to the time of its continuance. A percent [119] age tax on receipts necessarily varies with the amount of the receipts, and expires with their termination. It would be doing violence to the language used by the legislature, and confounding things in their very nature distinct, to hold that the prohibition of a percentage tax on receipts was a prohibition of a specific tax on a trade, employment, or business. It would be equivalent to the assertion, that the prohibition of a particular tax was a prohibition of all taxes. It would reverse the familiar maxim, “ Expressio unius est exclusio alterius.” The history of the act of 1872, “ in relation to the Southern Express Company,” is, we think, conclusive of the correctness of the interpretation we place upon the particular clause under which the appellee claims an exception from the specific tax imposed by the city, if the language of the statute was ambiguous, and did not imperatively demand this interpretation. The revenue laws of 1868 imposed a state tax of three fourths of one per cent, on the gross receipts of express companies. It was this tax the “ Southern Express Company ” had resisted, and, to avoid its payment, had engaged in litigation with officers of the State, charged with the duty of its collection. It was this tax the State, by the act referred to, compromised or compounded by the acceptance of a specified sum for the years the company was in default, and commuted for the future into a specific annual tax, without regard to the receipts of the company. A.tax on its receipts was the wrong of which the company complained, and £rom which the State relieved it. This wrong, if it was a wrong, would have been but partially relieved, if to municipal corporations had been reserved the power of imposing a tax on receipts, which the State for the time suspended or waived the right to impose. Hence the particular clause of the statute was introduced, prohibitory of a tax on receipts by municipal corporations ; leaving such corporations, if they had power, to impose, as the State imposed, a specific tax on the business or employment. Municipal corporations are established for the local government of towns, cities, or particular districts. The power they exercise is the governmental power of the State, delegated for public convenience. The authority of taxation is of vital importance ; essential to the existence of the corporation and the exercise of its powers. The whole corporate community are interested in the preservation and exercise of this power, and have the right of insisting that all who share in the benefits and protection of the corporation shall participate in the burden of taxation, save so far as exempt by the legislature. When the power of taxation is conferred on the corporation, its withdrawal or individual exemption from its operation is not to be presumed. The relinquishment by the State of its power [120] of taxation is never presumed. A deliberate purpose to abandon it must be apparent, or the State retains it. Providence Bank v. Billings, 4 Peters, 514. The principle is equally applicable to a municipal taxation. The express power of the city to impose a specific tax on the employment or business of express companies cannot be presumed to be withdrawn or revoked by a general statute prohibiting all municipal corporations from imposing a percentage tax on the receipts of a particular company. Again, exemptions from taxation are always strictly construed, because equality in the burden of taxation is presumed. When an exemption is claimed, it must appear to have been so clearly granted as to be free from any fair doubt. Dillon on Muni. Cor. § 616. If the exemption claimed by the appellee was supported, it would be relieved from all municipal taxation on its business or employment, whether that taxation is specific on its business, or in the form of a tax upon its receipts. Every other express company would be subjected to municipal taxation. Every other business or employment, pursued witbin the corporate limits, would be burdened with municipal taxation, though the profits derived were far less than those acquired by this company. The legislative intent to grant the exemption must be clear and unmistakable, before a court can be justified in declaring such an exclusive privilege exists. Such an intent is not expressed, and cannot be fairly deduced from the provision of the statute under consideration. The charter of the city of Montgomery is a special, as distinguished from a general statute. The general rule is, that statutes of a general nature do not operate a repeal of particular statutes enacted for the benefit of public corporations as part of their charter. Bond v. Hustand, 20 La. Ann. 135; Town of Ottawa v. County of La Salle, 12 Ill. 339. In Orange & Alexandria R. R. Co. v. City Council of Alexandria (17 Grattan, 176), the city council of the city of Alexandria had power by the charter of incorporation to levy taxes for the use and benefit of the city. In the exercise of this power, a municipal tax was imposed on the real estate and rolling stock of the Orange & Alexandria Railroad Company. The general revenue laws of the State imposed on railroads a tax of one mill per mile for every passenger transported, in lieu of all other taxation. It was insisted that the effect of this statute was an exemption from all municipal taxation. The court of appeals of Virginia held the general law confined to taxation by the State not affecting the power of taxation specially conferred on municipal corporations. The court say: “Exemptions from taxation are to be construed strictly; and when the power of taxation has been once conferred, it is not to be crippled or destroyed by strained interpretations of subsequent laws. It must [121] be sustained in its full extent under the original gr ant, until abridged, or taken away, by a clear expression of the legislative will.” So far from the power conferred on the city council to levy a specific tax on express companies, or on this particular company, having been taken away or abridged by the legislature in the enactment of the statute under consideration, the just interpretation is that it is preserved. The charge of the circuit court was erroneous. The appellant was entitled to recover under the facts recited in the bill of exceptions. The judgment is reversed, and the cause remanded.