Mayor of Mobile v. Baldwin

57 Ala. 61

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

BRICKELL, C. J.

These cases involve kindred questions, and have been considered together. The facts of the first case, are, that the appellee, Baldwin, owning a steamboat, the “ Anne,” which is registered in the custom-house in the city of Mobile, (the county of Baldwin being in that collection district), and is employed as a ferry-boat, daily plying from the eastern shore of Mobile bay to the city of Mobile, transporting freight ” and passengers. The boat returns at night to the eastern shore, and there remains until the succeeding day, when its trips are commenced. The facts of the second case, are, that the appellants are residents of the county of Pickens, owning a steamboat, “Lotus, No. 2,” which is employed in plying from the city of Mobile to Columbus, in the State of Mississippi, transporting freight and passengers. On these boats the corporate authorities of the city of Mobile imposed a municipal tax, and were proceeding in its collection. The legality of the tax being disputed, these bills were filed to enjoin its collection.

It is apparent the material question presented is the liability of the vessels to municipal taxation, and the solution •of this question depends on the extent of the power to impose taxes which the legislature has conferred on the city authorities. For, “it is a principle universally declared and •admitted, that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred.” — Dillon • on Mun. Corp. § 605. The thirty-seventh section of the charter, or act of incorporation of the city of Mobile, empowers the mayor, aldermen and common council “to lay taxes upon the real and personal estate,” &c., within the city. The tax to be laid in pursuance of an assessment and valuation thereof. The fifty-fourth section authorizes the imposition of a tax on itinerant or transient merchants, steamboats or other vessels, remaining in said corporation less than one year. When the thirty-seventh section is read and considered in connection with other provisions of the charter, it is clear the tax thereby contemplated is an annual tax on the value of property, which, though personal, has a situs within the city as fixed and permanent as its nature permits, and a ■change of which is not contemplated. The fifty-fourth section contemplates a tax on merchants not having a fixed residence within the city, or not there pursuing their business for the length of time which would subject them to an annual tax — a temporary, as distinguished from a permanent business. It also contemplates a tax on steamboats -or other vessels which may have a temporary situs within the city, so that if they remained during the-tax year they would become liable to the annual tax assessed on such property, not remaining one year, yet being within the •city, not casually, or while in transitu, or merely in the ordinary course of business or commerce, but temporarily incorporated with the property of the city, and there kept or maintained, because of the advantages which may be there -derived. There may be steamboats which come into Mobile to navigate the waters flowing into Mobile bay, during the winter and spring, when these streams are navigable by boats of a larger size than can navigate them at the other .seasons of the year, and when cotton and other agricultural products, the principal articles of water transportation, are ready for shipment. When such products have been moved and the waters reach such a stage that they are navigable • only by smaller boats, they may seek employment elsewhere. Or there may be boats, or other vessels, which may make the city the place of mooring or lying up, while undergoing repairs, or while awaiting a rise of the waters, or awaiting profitable employment, and this may be the habit, yet they would not remain long enough at any one time to be the subject of the annual tax contemplated by the thirty-seventh section. The residence of the owners may or may not be within the city, and though to such boats or vessels protection is, of necessity, extended by the city government, from all taxation they would escape if the corporate authorities had not the power conferred by the fifty-fourth section. Under the thirty-seventh section it is the situs of the property — the permanent, as distinguished from a temporary situs — which renders the property liable to municipal taxation. Under the fifty-fourth section it is the temporary situs, not continuing one year, yet distinguishable from the casual, transitory presence of the property within the city, in the mere ordinary course of business or commerce, that determines its liability. The situs of the property, not the domicile or residence of the owner, is the test to which the liability to taxation must be submitted. The doctrine that personal property has no locality, that it follows the person of the owner, however true as to the disposition of or succession to such property, is often an unimportant inquiry in determining whether such property should bear its just and legal proportion of public burthens. If it be visible, tangible property, or if it be property not having a visible, tangible existence, yet a legal existence, capable of an actual situs, it is the actual situs, not the domicile of the owner, most-material to be considered. Protection is the legal and constitutional consideration of taxation, and that must be presumed to be afforded where it is a necessity and a duty. If' the owner of personal property separate it from his domicile— commits it to another jurisdiction, so that it is not distinguishable from other property of a like kind within that jurisdiction, or from similar property casually, in the usual course of its use and enjoyment, coming within that jurisdiction — he takes it away from the jurisdiction of his domicile and commits it, not to the comity, but to the power of the place to which he transfers it. A vessel merely touching at Mobile, in its ordinary course of navigation and trade, would not become liable to taxation, State, county, or municipal.. It is, while there, entitled to protection, and would receive it, from all governmental authorities. Taxation could not be imposed, for the protection afforded is not of the character of which it is the consideration. It is afforded on principles of public policy and sound morality, lying at the foundation of organized society and civil laws. Or, Mobile may be one of the termini of a vessel — it may in the course of its employment touch there merely to discharge and receive freight and passengers, one or both, returning to another port or place. Such use and employment would not separate the vessel from the domicile of the owner and subject it to municipal taxation. Its presence in Mobile would be casual, in the mere ordinary course of navigation and commerce.

The'appellee, Baldwin, employed the steamer “Anne,” only according to its capacity for use, from his domicile to the city of Mobile. The city was one of the termini of its daily trips. "When not employed, the mooring place of the boat was not within the city, but at the domicile of the appellee. This was the point from which the trips were commenced, and to which the boat returned when these were concluded. A stage-coach, or a market-wagon, or other vehicle, plying daily to the city, returning daily to the home of its proprietor, without the city, or the horse which one may daily ride into the city, remaining there on business or pleasure during the day, would have been as fitting subject of municipal taxation. The situs of these would have been as ■ completely separated from the domicile of the owner as was the situs of this boat.—St. Charles v. Noble, 51 Mo. 122. It was not intended by the legislature, in conferring the power to tax transient or itinerant steamboats, or other vessels, to obstruct ingress, egress, or regress to the city, or impose burthens on its commerce. The purpose was to subject to taxation property, which, because of its incorporation with the property of the city, derived protection and benefit from the municipal government. The words transient gr itinerant are not to be accepted in their broadest sense. If they were, they would embrace every merchant traveling to, or passing through the city on his business, though his actual locality was elsewhere, and every vessel that might touch at the city, though driven there by the stress of weather. The sense in which they are used is illustrated by a general law, ■enacted at the samé session of the legislature with the charter, entitled “ an act for securing taxes from transient dealers.” — Pamp. Acts 1865-6, p. 36. This act declared all persons engaged in the sale of goods, &c., who had commenced business since first June, 1865, transient dealers. It provided for the issue of a license to them, and if they became permanent dealers, by continuing in business for twelve months, the tax paid as transient dealers should be deducted from their annual tax. Engaging in and carrying on business ■ in the State created the liability for the tax, and not a mere temporary presence here, though the course of business may have required it. If personal property has not a determinate sities different from that of the domicile of the owner, as a general proposition, it is taxable only at the latter. Under the charter of the city, it must have within the city' a situs, fixed and permanent, or a temporary situs, as distinguished from a transitory presence in the. course of trade, and commerce, to subject it to taxation. Adopting the language of the Supreme Court of the United States in St. Louis v. Ferry Company, 11 Wall. 431, the relation of the “ Anne ” to the city was merely that of contact there, as one of the termini in its transit across the bay in the prosecution of its business. The owner never separated it from the jurisdiction of his domicile, and incorporated it with the property of the city.—Hays v. Pacific Steamship Co., 17 How. 599; State v. Haight, 30 N. J. 428; People v. Niles, 35 Cal. 282. The registration of the boat in Mobile is not material. It could not be registered elsewhere, the residence of the owner being within that collection district, and it is this residence which fixes her home port.—St. Louis v. Ferry Company, supra; Jordan v. Young, 37 Maine 276; S. B. Superior, Newberry, 181. The tax on this boat was, therefore, unauthorized and illegal.

Whether the tax on the “ Lotus ” can be maintained, the facts stated in the bill are not full enough to justify us in determining finally. The legality of the tax is assailed by the bill on no other grounds than that the residence ordomicile of the owners was without the city; that the boat,, while lying at the wharves in Mobile, was oh the high seas, and because the tax was assessed against the boat, and not the owners. If in this last respect the assessment is erroneous or irregular, a new assessment which may be made under the charter, would cure the defect. The assessment of personal property should be made to and against the owner, if “ lie be known. If he is unknown, the fact should be so stated, and the assessment maybe on the property, describing it properly. An erroneous or irregular assessment does not justify the interference of a court of equity to restrain the enforcement of the tax. — Cooley on Taxation, 540.

The fact that the owners of the boat do not 'reside within the city, prima facie relieves it from municipal taxation. It is, however, the actual situs of the boat, permanent or temporary, which it is most material to consider in determining the liability. If the boat had such situs within the city, under the views of the charter we have expressed, it is the subject of municipal taxation. If it had not, and its presence in the city was merely transitory, in the course of its employment, it was not liable to such taxation. For all purposes of taxation, the boat though of necessity lying in the waters at the wharves in the city, was within the city, if that was its situs; taxable under the thirty-seventh section of the charter if such situs was fixed and permanent; under the fifty-fourth section if it was temporary. In the present condition of the case we abstain from saying more.

In Gold Life Insurance Co. v. Lott, 54 Ala., we held a court of equity should not, by injunction, interfere to restrain the collection of State and county taxes, unless in addition to illegality, hardship, or irregularity, the case was brought within gome of the established principles of equitable jurisdiction. It is said by Mr. High: “It will be found on examination that courts of equity have been inclined in the case of assessments by municipal corporations to relax somewhat the stringency of the rule of non-interference as applied to the collection of State taxes. Though it is difficult to perceive any sufficient reason for such distinction, yet the distinction itself remains.” — High on Inj. § 369. He adds: “ Though relief by injunction is more freely granted in cases of municipal assessments, still if the objections may be urged and the grievances adjusted in a court of law, equity will not interfere with the assessment.” — Ib. § 370. There may be cases in which a court of equity will interfere to enjoin municipal authorities from usurpation or abuse of power, affecting injuriously, the citizen or his property, within their jurisdiction. A tax may be levied, for a purpose wholly unwarranted, affecting all the property and all the citizens resident within the territory of the municipality, and its collection may involve such peril to the citizen, or such multiplicity of vexatious suits, that the court in the exercise of its power to confine corporations within the limits prescribed by their charters would, by injunction, restrain the levy and collection. When such a case arises, it may be that the stringency of the rule laid down in Alabama Gold Life Insurance Co. v. Lott, can be relaxed. But, in cases like the present, of an assessment on personal property, affecting only a single individual, or several jointly owning a specified article of personal property, there is no ground for interference. Multiplicity of suits, irreparable mischief, is not affirmed, and cannot be apprehended. Admitting the tax is illegal and void, the corporation is merely pressing the payment of an Unfounded, unjust demand, and. threatening the commission of a personal trespass, to compel payment. If it persists, the complainants have an adequate remedy at law. In Dillon on Munic. Cor. § 738, it is laid down that “ equity will not restrain even an illegal and void tax assessment where it is sought to be enforced against personal property only, since here the party has an adequate remedy at law; nor in such a case will equity interfere because several join in the bill asking it.” In Dowe v. City of Chicago, 11 Wall. 108, which was a bill to enjoin the city from collecting a tax on shares of the capital stock of a national bank, the court says: “ Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying the interposition of a court of equity to enjoin its collection. The illegality of the tax and the threatened sale of shares for its payment constitute themselves alone no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind, distinguishing it from a common trespass, and bringing the case under some recognized head of equity jurisdiction, before the preventive remedy by injunction can be invoked.” If in a case of this character a court of equity should intervene, from anything we can see to the contrary, it could intervene if individuals not occupying any official relation were about seizing and selling the boats without legal process for the satisfaction of a demand, the justice and legality of which the claimants disputed. Thus the court could draw to itself jurisdiction of every threatened trespass upon personal property. The cases of Tallassee Manufacturing Co. v, Spigener, 49 Ala. 262, and So. Express Co. v. Mayor, ib. 404, are not opposed to, but in harmony with this view. Admitting the illegality of the tax, the demurrer to the bill in the first case was well taken, and should have been sustained. Eor the error in overruling it the decree in that case is reversed, and a decree must be rendered dismissing the bill. The appellee must pay the costs in this court and in the court of chancery.

In the second case, the demurrer was properly sustained, and the decree must be affirmed.