Southern Railway v. State ex rel. Wilcox County

HARALSON, J. This is an appeal, not from the proceedings of the probate court, — as erroneously conceived by counsel for appellant, — under section 4046 et seq. of the Code of 1896, providing for a sale of lands for the payment of taxes assessed on them, or against the [529] owner of them, when the tax collector shall report to the court, that he has been unable to collect the taxes as-' sessecl against such lands, or the owner thereof, without a sale of the same. It is true, the transcript shows, that there had been proceedings in the probate court to collect taxes against certain lands, and against defendant,but that is incidental to this suit and its purposes. Un-' cler section 4069, an appeal was taken by defendant from the probate court proceedings in such behalf, to the circuit court. That section provides, that when such appeal is taken, it “must be tried de novo, upon an 'issue made up under the direction of the court." It also provides, that if the issue is decided against the defendant, “the court must render judgment against him and his sureties in favor of the state for the amount of the taxes, fees and costs, besides the costs of the appeal; and such judgment shall be a lien upon the land described in the decree from Avhich the appeal was taken, which lien, with a description of the lands, must be declared in the judgment.” The plaintiff filed a complaint in the circuit court, claiming of defendant $242.12, due from the .defendant for a special tax for bridges for the year 1905, which sum was unpaid, and claimed a lien on a certain lot of land, fully described in the complaint, for said taxes and interest thereon. The defendant answered the complaint, challenging the legality and constitutionality of said tax. The plaintiff demurred to these defenses thus set up in said answer, on many grounds, which demurrer was sustained; This ruling is not insisted on as error. The defendant then pleaded the general issue to the complaint, and the trial was had thereon. The evidence showed without conflict, that there was duly assessed against the defendant for Wilcox county, for special bridge tax for 1905, due 1st October, 1905, $232.81; and that it was due and unpaid; that there was a levy, by the tax collector, on the property claimed in the complaint for said special bridge tax, Avhich had been assessed under an order of the commissioners’ [530] court of said county on the first Monday in June, 1905, fixing the tax of one mill for bridges for the year 1905, besides the one for general county purposes. We do not understand, that the regularity of this tax, as being within constitutional limits, although at first assailed in defendant’s answer, is now challenged. The argument proceeds on the ground, that this tax was sought to be levied by the probate court under the sections of the Code above referred to, and there was no evidence or averment in the pleadings to show that defendant owned any property in the county, or that the probate court had ever decreed any property to be sold in any proleeding against defendant, or that any proceedings were ever had in said court against defendant, or to show any statutory jurisdiction by either the probate or circuit court. It is again insisted, that in the circuit court there appears only a money judgment against defendant, and no lien was declared on the land described in the complaint, for the amount of said taxes. It appears from the bill of exceptions, that said tax was assessed as a special bridge tax, against defendant, Avhich has not been paid, and that there was a levy on the property claimed in the complaint, and the order by the probate court levying said tax is therein set out. It is true, that a judgment was rendered against defendant in the circuit court, for the amount of taxes ascertained to be due by it for bridge purposes as levied, but no lien was declared in said judgment with a description of the lauds on which it was declared, as provided by section 4069 of the Code of 1896. We have seen, that under that section, the appeal is to be tried de novo, and that a judgment may be rendered against defendant for the amount, of the taxes it owes, irrespeetive of any proceedings in the probate court, further than to show that the tax as claimed, was assessed against defendant. In Perry County v. Railroad Co., 58 Ala. 564, it was said: “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 taxpayer ,that may be enforced by action at com [531] mon law, unless the statute gives a remedy that is, in its nature, exclusive.” In Winter v. City Council, 79 Ala. 489, it was said: “The lien for taxes is created by law, and is a legal right which exists independently of the remedy for its enforcement.” “The preponderance of authorities establishes, that either debt or assumpsit lies for a recovery of taxes, as debt lies for a sum of money certain, due. by statute.”—2 Desty. Tax, § 126; Meredith v. U. S., 13 Pet. (U. S.) 486 (10 L. Ed. 258). “Taxes are a political necessity. If the law raises a promise to pay, that- one of its citizens may not obtain the services or goods of another, without compensation, surely it will raise it, that the state may exist. The tax is a personal charge against the citizen, notwithstanding a lien upon the property may he given by statute for its payment.”—Perry County v. Railroad Company, 58 Ala. 546, 564; Winter v. City Council, 79 Ala. 493. Our statute, section 4069, recognizes the. doctrine as thus declared by the authorities, and provides for a judgment against the party owing the tax, independent of any statutory provision for its enforcement. The debt owing by defendant for this tax is not.disputed, nor that it was assessed, hut it is objected that the judgment did not declare the. lien and give a description of the lands on which it Avas to operate. This, hoAvever, is' something of udiich defendant cannot complain.. It did it no injury. It aatus rather, if of any effect as to it, in its interest. The plaintiff could alone complain of this. The omission, certainly, did not render the. judgment void. Affirmed. Tyson. Cl. J., and Simpson and Denson, JJ.j concur.