Perryman v. City of Greenville

51 Ala. 507

• Court: Supreme Court of Alabama
• Decided: June 15, 1874
• Status: Published

Opinion

BRICKELL, J.

The city of Greenville was incorporated ny a public statute, approved February 15, 1867, Pamph. Acts 1866-67, p. 464. Courts are bound to take judicial notice of the charter granted a municipal corporation, by the legislative power of the State, and of the authority it confers. Case v. Mayor of Mobile, 30 Ala. 538; Smoot v. Mayor of Wetumpka, 24 Ala. 112. In pleading, it is not necessary to aver facts, of which the court takes judicial notice. The complaint was not, of consequence, demurrable, because it did not aver by what statute the city had authority to enter into the contract on which suit is brought. Nor was it necessary to allege in the complaint by what authority or ordinance the marshal collected the taxes; nor that such ordinance was regularly adopted. The regularity of an assessment of taxes, and the legality of the tax imposed, are questions of concern to the tax-payer, who pays them, not to the collector, who receives them. The collector cannot retain the moneys by him collected, because the tax is illegally imposed, or irregularly assessed. If the tax-payer submits to payment, the only duty of the collector is to account and pay over to his superior. Boring v. Williams, 17 Ala. 510; Thompson v. Stickney, 6 Ala. 579.

There are some well-considered authorities, holding that the provisions of the internal revenue laws, prohibiting the admission in evidence of instruments not stamped, are inapplicable to the courts of the several states, but of force only in the courts established by the constitution and laws of the United States, over which the Federal legislature can legitimately exercise control, and to which they can probably prescribe rules of evidence. If the operation of this law is not thus limited, grave doubts of its constitutionality are entertained, and several courts of high authority have declared that it does not' conform to the constitution. On these questions we shall pronounce no opinion, until it is necessary to the decision of a cause before us. All the authorities concur, that when there is no evidence that the omission to stamp was with a design to evade the revenue laws, the instrument is valid, and should be received in evidence. McGovern v. Halstack, 53 Penn. 176; Tobey v. Chipman, 13 Allen, 123; Green v. Holway, 101 Mass. 243. No evidence of such an intent was offered, and the court properly overruled the objection to the reading of the bond in evidence.

It seems to have been a controverted question in the court below, whether the town council had made an allowance to Perryman, the marshal, for services rendered in the assessment of taxes. The fact of such allowance was provable only by the records or minutes of the proceedings of the council. The “ books ” of the corporation, by which we understand the record of the proceedings of the council, were offered and received to disprove the fact of such allowance. In this, there was no error. They were the best and only evidence of the fact that such an allowance had, or had not been made. .

The judgment of the circuit court is affirmed.