Davis v. Petrinovich

112 Ala. 654

• Court: Supreme Court of Alabama
• Decided: November 15, 1896
• Status: Published

Opinion

HARALSON, J.

1. The fact of the pendency of another suit by one Rolston against the defendant in this case, in the same court with this suit, and in reference to the same subject matter, is not well taken. It was admitted on the trial of this case, that the case of Rolston was instituted in the Mobile chancery court, on the 24th of March, 1896 ; that it “was substantially the same in object and almost identical in language with that of Davis v. Petrinovich, Tax Collector, (this case), and that it was brought in behalf of all parties in interest by Hugh Rolston, but was amended on the hearing, so as to be only on his own account,” and that the “said Rolston bill was answered, evidence taken and case submitted and argued on the pleadings and testimony, at the same time with this, the Davis case.” What disposition, if any, has been made of the Rolston case,— whether or not it has been decided, — is not shown ; nor is it shown, that said cause was submitted on the same evidence even, as that on which this cause was submitted and tried. That cause, then, confessedly, is not between the same parties as those to this case, though relating to the same subject matter, is between different parties ; is not shown to be on the same evidence on which this case was tried, and is still pending undetermined in said court. All that is shown is, that in said suit, the plaintiff in this cause contributed one dollar towards paying the expenses of conducting it. These facts furnished no ground for abating the present suit. — Foster v. Napier, 73 Ala. 595.

2. That a bicycle comes properly within the definition of a carriage or vehicle, we appehendcan no longer admit of dispute. A vehicle is defined to be, “Any carriage moving on land, either on wheels or runners ; a conveyance; that which is used as an instrument of conveyance, transmission, or communication.” — Century Dictionary. And a carriage in the same lexicon is defined as, “That which is used for carrying or transporting, especially on or over a solid surface. A wheeled vehicle for the conveyance of persons.”

In Taylor v. Goodwin, 4 Q. B. Div. 228, it was held, that a person riding a bicycle on a highway at such a pace as to be dangerous to passers by, may be convicted under an, act to prevent any person riding any horse or beast, or driving any sort of carriage furiously, so as to endanger the life or limb of any passenger. The court said : ‘ Tt may be that bicycles were not known at the time when the act passed, but the legislature clearly desired to prohibit the use of any sort of carriage in any manner dangerous to the life or limb of any passenger. The question is, whether a bicycle is a carriage within the meaning of the act. I think the word ‘carriage’ is large enough to include a machine such as a bicycle, which carries the person who gets upon it, and I think such person may be said to drive it.”

In Williams v. Ellis, 5 Q. B. Div. 175, it was held, in construction of the act allowing tolls to be collected at a gate on a turn-pike road, that a bicycle was not era-’ braced within the purview of the act imposing a toll of 6 pence, “for every * * sociable, chariot, berlin, landau,” &c., or other such carriages, for the reason, that the act inrposed a toll on particular carriages which were described as, “or other such carriages, ” which latter must be ejusdem generis with the carriages previously specified. The case of Taylor v. Goodwin, was referred to in this later decision with approval.

It is a matter of common knowledge, that the bicycle is now used for the purpose of the conveyance of parties owning or hiring the wheels, largely for the purpose of pleasure and exercise, and that in cities and towns, especially, they are coming to be used for the transportation, from point to point,. of packages of goods and merchandise such as they are fitted to carry'. What further possibilities await the bicycle as a means of the transportation of persons, goods and merchandise, it is not important now to consider or predict. They remain to be developed. On principle and. authority, however, it may be said, that it has taken its place safely with the vehicles and carriages of the time, entitled to the rights of the road and street equally with them, and is subject in its use to the same liabilities. Its use upon the highways of the country and upon the streets and sidewalks of towns and cities may be regulated under legislative and delegated municipal authority. — Porter on Roads & Roadside, 157; Elliott on Roads and Streets, pp. 331, 635; Horr & Bemis on Municipal Police Ordinances, § 247 ; Clemenston on Road Rights & Liabilities, §§ 99, 106-109 ; Mercer v. Corbin, 117 Ind. 450 ; Holland v. Bartch, 120 Ib. 46, and authorities cited; Thompson v. Dodge, 58 Minn. 555.

8. Section 26 of the charter of Mobile, (Acts, 1886-87, p. 240), provides, that “the general council is authorized and empowered to levy and collect for each year of its existence, upon all real and personal property, and all subjects of State taxation within said city of Mobile, except the tax levied on polls, a tax of not exceeding six-tenths of one per cent of the value of such property, or subjects of taxation during the year preceeding that for which the general council may assess and levy the tax above provided for. ’ ’ By section 21 of the amended charter, (Acts, 1894-95, p. 387), the regulation of “hackney coaches, carriages, wagons, carts and drays,” was conferred upon the general council, and section 40 of said amended charter provides, “That the said general council shall, besides the tax heretofore authorized, [Sec. 26], have the authority to assess and collect from all persons and corporations, trading and carrying on any business, trade or profession, by an agent or otherwise, within the limits of said corporation, a tax license which shall be fixed and declared each year by an ordinance of said corporation, and the license so said shall be issued and the amount imposed shall be collected as may be provided by ordinance of said corporation. * * * A vehicle license may be imposed in addition to business license, provided that said license shall only apply to vehicles used in the transportation of goods and merchandise, and vehicles used for hire at the public stands; * * * * that in addition to the license tax imposed on livery stables, there shall be an additional license tax not exceeding one dollar for every carriage, and fifty cents for every buggy owned and used for hire by such livery stable. ’ ’

4. On the 16th of March, 1896, the general council of Mobile, adopted a general license ordinance, providing, “That a license tax for the fiscal year, begining on the 16th March, 1896, and ending on the 14th March, 1897, is hereby imposed and assessed on each person, firm, association, or corporation trading, or carrying on any business, trade or profession, by agent or otherwise, within the limits of the city of Mobile,” followed by a schedule of special licenses required in each instance, among others, specifying bicycles, — “including tags furnished for same, — $1.00.”

The imposition of such a license tax, it has been well said, is such as may be referred to the taxing power, or to the police power, — to the latter, when its object is merely to regulate, and the amount levied is merely to pay the expenses of enforcing the regulation, including reasonable compensation for the additional expense of municipal supervision over the particular business ox-vocation ; and to the taxing power, if its main object is revenue. If, however, it appears that the legislature has not bestowed the right to tax under either of these delegated powers, but has omitted it, the imposition of the tax is without legislative sanction and void. — City of St. Louis v. Green, 7 Mo. App. 468 ; s. c. 70 Mo. 562 ; 1 Dillon on Munic. Corp., § 357 ; Burroughs on Taxation, § 77; Van Hook v. City of Selma, 70 Ala. 361.

5. The only authority, then, appearing in the charter of said city, for levying a distinctive license tax on vehicles of axxy description, apart from the general police power to regulate them, is confined by the terms of the act, — section 21, — to “hackney coaches, carriages, wagons, hacks and drays,” axid to such only of these, as- ax-e used in the transportation of goods and merchandise ; to vehicles xxsed for hire at the pxxblic staxids, and on carriages axxd buggies owned and xxsed for hire by livex-y stables. If a business man in Mobile pays a business license tax, as he may be required under the charter to do, he xnay be also required, under the charter, to pay an additional license-tax on axxy vehicle he xxses in his business, ixx the transportation of goods and mex-chandise, and he is relieved from such tax on other vehicles he may own. It was ixot within the coxxtemplatioix of the legislature, as is evident from the text, that an inhabitant of that city should be required to pay such a tax on his pleasure carriage or vehicle, of whatever descx-iptioix, If not used ixx the business of transportation of goods and merchandise. The policy of the legislature seems to have beeix to coixfine the liceixse tax oix vehicles, whether imposed under the police or taxixxg power, to such of them as are used iix the transportation of goods and merchandise, and those kept for hire, and to relieve all other carriages from such a tax. — The City of St. Louis v. Green, 46 Mo. 574 ; City of Hannibal v. Price, 29 Mo. App. 280.

6. In tlie charter (Acts, 1886-87, p. 223), in section 45, after limiting the rate of taxation, it is provided: ‘ ‘Nor shall said general council lev3r any tax for any other purpose than those specially stated in this act, and any tax or license charges other than those authorized by said sections 26 and 40 [of the charter] which said general council may levy or attempt -to levy, shall be null and void and. and not collectible, and any tax-payer may enjoin by bill in chancery, and restrain without bond, the tax-collector of the city of Mobile from collecting any tax which said general council may levy or attempt to impose beyond the aforesaid tax and license charges. The provisions of this act shall not be enlarged, or extended so as to be made applicable to or for any other purposes than those stated in this act.” It is manifest, therefore, that the levy of said bicycle tax was outside of the powers of the general council to levy, and was illegally levied.

It is provided again, that the taxes levied shall have the force and effect of a judgment against the person assessed therewith, to which a preference is given over all other securities and incumbrances, and for the collection of which a lien is given on all the real and personal property of the tax-payer ; that the mayor shall certify on the tax-book, that said taxes have been fixed and levied, and append his warrant, directed to the tax collictor, authorizing and commanding him to collect the taxes so levied, and shfill deliver said tax book and warrant to the tax collector, whose duty it is made forthwith to notify the public by advertisement for thirty days in some newspaper published in the city, that he is ready to receive payment of the taxes so levied ; that the tax collector shall be charged with the whole amount of the assessed taxes for the year ; that he shall issue garnishment process for the collection of taxes and licenses as on judgment returnable to any court having jurisdiction of the amount; that after the expiration of ninety days from the first publication of the tax collector’s notice, as aforesaid, he may levy upon and seize any personal property, if any there be, or if there be none, or not sufficient personal property, then upon the real estate of the delinquent tax-payer; and that he shall be charged with and accountable for the whole amount of the assessed taxes for the year, and shall only discharge himself from such accountability by showing that the amounts unpaid could not have been collected by the exercise-of the means given him. — Sections 31, 32, 36 and 39 of original charter, Acts, 1886-87, pp. 242-43 ; amendatory act, 1894-95, § 6, p. 387.

Without these provisions, it may be, that the tax being illegal, there would be an adequate remedy at law against its collection, and chancery would not enjoin, (High on Injunctions, §§ 543, 545) ; and that twenty dollars being the fixed minimum of chancery jurisdiction, the court would not entertain a bill to enjoin the collection of a tax of one dollar. — Hall v. Cannte, 22 Ala. 650; Campbell v. Conner, 78 Ala. 211. But, the statute takes the case from the influence of any such rules as are applicable to the general exercise of the jurisdiction of equity courts ; and any tax-payer is authorized by the charter, as we'have seen, to enjoin the levy and collection of any illegal tax levied and assessed by the general council. The act in terms bestows the right of injunction without bond, in favor of the tax-payer, whenever the general council ‘ ‘may levy or attempt to impose [any tax or license] • beyond the aforesaid tax and license charges,” which may not be rightfully levied and collected. It is idle to say, that the general council have not levied and attempted to impose this illegal tax, or that the collector has no intention of collecting the saíne, because it is illegal. It has been' levied, and the collector is charged with it, and by the terms of the charter, must account for and pay it himself unless he. has been unable to do so after he has used all means conferred on him for its collection, and the collector in this suit is seeking to maintain the legality of said levy.' The wrong done the appellant was in the imposition of said illegal tax, and it was not incumbent on him to delay filing his bill until the further wrong of a levy on his property had occurred, or his creditors were garnished. If so, the very purpose of the legislature in granting relief against such unlawful menaces of the tax-payer’s rights would thereby be defeated. — 1 High on Injunctions, § 18.

7. The proofs showed that appellant was a tax-payer of the city; that this illegal tax had been levied, and there was an attempt to impose it on his property; that the collector had made the publication as required by the statute; that the bicycle was his private carriage, used alone for the purposes of pleasure, and not for the transportation of goods and merchandise.

The bill should not have been dismissed for want of equity, but the motion to dismiss it on that account should have been overruled, and the injunction perpetuated.

Reversed and a decree will be here rendered, restoring the injunction that had been granted, and making it perpetual.

Reversed and rendered.