Mayor of Mobile v. Waring

41 Ala. 139

• Court: Supreme Court of Alabama
• Decided: June 15, 1867
• Status: Published

Opinion

BYRD, J.

1. The counsel for the appellee insists, that the city authorities are claiming the right to assess against and collect from Mm taxes, for a greater period than that authorized by law. However this may be, it is apparent, if the city has any right to assess and collect the tax claimed, it has a clear rigl t to do so for a part of the period, if not for the whole; and as the appellee refused to account at all, and did not offer in his bill to account for any part of that period, he is not entitled to maintain his bill on the ground that the city claimed more than it had a right to demand. The familiar maxim, that he who seeks equity, must do (or offer to do) equity, applies with full force to the case made by the bill. And this brings us to the consideration of the main point involved in the decision of this cause.

2. The authority of the State to confer the power of taxation upon a municipal corporation, is not questioned by counsel; nor do they question the constitutionality of the act under 'which the municipal authorities of Mobile were proceeding to assess the tax. The point made by the counsel for the appellee, as we understand it, is, that the act in question did not authorize the assessment and collection of taxes on the amount of sales of the salt bought and sold by the appellee, under the facts and circumstances shown by the evidence in this cause; or, if it did, that then the act, to that extent, is unconstitutional. Without intending to intimate an opinion, we remark, that we are not aware of any principle of law, or constitutional provision, which would inhibit the State legislature from authorizing by law the assessment and collection of taxes upon sales of merchandise sold previous to the passage of the law; and if the ordinance went beyond the authority conferred by the act, to that extent it would be null and void. In our opinion, the act, and the ordinance adopted, have a constitutional field of operation, and are, therefore, valid.

It appears from the evidence, that appellee purchased the salt in the years 1865-6, from the consignees at Mobile; some was contracted to be purchased after it left Europe, and before its arrival in the bay of Mobile; and a part was purchased after it arrived in that bay, and before it was entered at the custom-house of the port of Mobile. Without stating all the facts proved by the testimony, we are satisfied that the appellee was not the importer of the salt, within any legal or commercial meaning of that term. He bought from the importer, or his consignee. A person who purchases goods from an importer, after they have been brought within the boundaries and jurisdiction of the United States, but before he pays duty on them, or they are delivered at the port of entry, and who then transports them at his own expense, from the place where they were when bought, to the port to which tit ey were consigned, can not be held to be an importer.

But the question arises, whether, under such circumstances, and those in proof, the purchaser of an import is subrogated to the rights and immunities of the importer; or whether the import, in the hands of such a purchaser, is liable to State taxation, so long as it remains in unbroken packages in the hands of such purchaser. If not, then the appellee had the right to retain and sell the salt, in unbroken packages, free from State taxation. But, whether he or the importer-could be taxed on the money arising from the sales thereof, we will not consider, as this case can be disposed of without touching that question. — See opinion of Taney, C. J., in license Cases. 5 Howard.

These, and kindred questions, have frequently come under the consideration of the supreme court of the United States; and it is to be regretted that the members of that supreme tribunal have so often disagreed upon those questions, and have still left some of them in great perplexity, if not obscurity. Without attempting the fruitless task of reviewing and reconciling those adjudications, we will content ourselves with a reference to those collated upon the briefs of the counsel in this cause, and with a few quotations from such as we prefer to follow, upon the question before us.

In the License Cases, (5 Howard, 574,) Taney, C. J., in his opinion, speaking of the question decided in the case of Brown v. Maryland, (12 Wheaton,) says; “When the commodity had passed from his” (importer’s) “ hands, into the hands of the purchaser, it ceased to be an import, or a part of foreign commerce, and became subject to the laws of the State, and might be taxed for State purposes, and the sale regulated by the State, like any other property." This rule the chief-justice approved and adopted; and I do not remember any case, in which its correctness has ever been judicially questioned. McLean, J., in his opinion in the same cases, says: “ Under the decision of Brown v. Maryland, it is admitted that the license acts can not operate upon the right of the importer to sell. But, after the import shall have passed out of the hands of the importer, whether it remains in the original package or cask, or be broken up, it becomes mingled with other property in the State, and is subject to its laws.” This rule was not questioned by any of the learned judges who delivered opinions in those vexed cases.

To entitle an import to exemption from State taxation, it must be in the hands or control of the importer, or his agent, in unbroken packages, or in the condition imported. If he breaks up the packages, and offers the contents for sale, they become liable, even in his hands, to State taxation. If he sells them in unbroken packages, under the authority of the License Cases and Brown v. Maryland, they are liable to State taxation in the hands of the purchaser. The appellee not being the importer of the salt sold by him, it was liable to State taxation; and a fortiori, the proceeds of the sale thereof were liable.

It is unnecessary, under this view of the merits of the cause upon the pi oof, to consider the grounds of demurrer assigned against the equity of the bill, or the other questions argued so ably at the bar, and on printed arguments furnished the court by counsel.

From the view we take of this cause, the decree of the chancellor must be reversed, and a decree must be here rendered, dismissing the bill, at the costs of the appellee> in this, and in the court below.