Stein v. Mayor of Mobile

24 Ala. 591

Opinion

CHILTON, C. J

'Three questions are presented by the record for our consideration :

1st. Did Mr. Stein, by the contract of lease, and the^act confirmation passed by the Legislature on the lltl^5Ts^»«arwj ^ 1841, secure an exemption from taxation upon h^ij^^est in the'^' waterworks! \

2nd. Are the acts constitutional under whiclJlTljhV^axyhrow sought to be recovered, was levied 7 and if so,

3rd. Do the water works described in the record ¡k^frhraiiiñ the act taxing the owners of real estate 7

1. The first of these inquiries came substantially before us at a previous term, between these same parties, and we then held, “that the right to tax the property is not restricted nor impaired by the contract, and may lawfully be exercised.” We have reviewed the ground upon which that opinion rests, and are satisfied with it. Had the parties intended to secure so important an exemption to the appellant, it is highly improbable that they would have omitted to mention it in the contract; and as there is no provision contained in it, by which the right of the city to impose the tax is taken away, we cannot presume an abandonment of this right, and the yielding up of a power, on the part of the city, so essential to its corporate existence, as that of taxation for municipal purposes. We rest this first proposition upon the authority of the case above referred to (17 Ala. 284); and proceed to inquire :—

2. Whether the acts under which-fchis tax was assessed, are constitutional. These acts may be thus stated :

The Legislature, having incorporated the Mobile and Ohio Railroad Company, by an act passed the 3rd of February, 1848, and having invested said company with the usual powers to carry into effect its objects, authorized them to locate, construct, and finally complete, a railway from some suitable point in the City of Mobile, in a western or north-westernly direction, to the west line of this State, towards the mouth of the Ohio River, &e. — See act of 1847-8, p. 225. Subsequently, by an act to amend and explain the preceding one, passed the 5th of January, 1850, it was provided, “that for the purpose of facilitating the construction of the road, the mayor, aldermen and common council of the City of Mobile, be, and the same are hereby, authorized to levy a special and separate tax upon the real estate lying within the limits of said city, annually, until the sum of three hundred thousand dollars is levied and paid to the said Mobile and Ohio Railroad Company ; provided, however, that only twenty-five cents, upon every hundred dollars’ worth of property, shall be collected in any one year.”

After making provision in the subsequent sections for assessing and collecting said taxes by the city authorities, and for the preservation of the names of the persons paying, with the amounts paid, and for issuing certificates of stock to any person who shall have paid one hundred dollars, &c., the seventh section provides, that before the said corporation shall be entitled to levy said tax, an election shall be held in said city, at which none shall be entitled to vote, except the owners of freehold estates in said city, or tenants under lease for a term of five years and upwards, and guardians who represent estates of wards, and requires the concurrence of three-fifths of the votes taken, in favor of the tax as provided by this statute. — See Pamph. Acts of 1849-50, pp. 150-1-2.

By a subsequent act, approved the 20th of December, 1851, the third section of the act of 5th of January, 1850, is so far modified, as to abolish the right to levy ¡§300,000 by taxation, and, in lieu thereof, the city is invested, under a like restriction of first procuring the concurrence of three-fifths of the owners, &c., of real estate in its favor, of levying a tax of two per cent, per annum, on all the real estate in the city, for five years; authorizing all persons who had previously subscribed for stock, and who had paid moro than twenty per cent, thereon to said company, to deduct the over-plus so paid from the tax to be' collected from them. This act contains other provisions, but they are not material in considering the question before us.

The required number of votes having been obtained in favor of the tax, the city was proceeding in its collection under the last named act, when the appellant, one of the tax payers who voted against the tax, and whose works for supplying the "city with water had been assessed, raises the question as to the constitutional authority of the Legislature to invest the city with the power to levy it.

It is true, as stated by the appellant’s counsel, that the constitution of the State does not mention the subject of taxation, except in the eighth section of the sixth article, which declares that “All lands liable to taxation in this State, shall be taxed in proportion to their value” ; but the power to tax is an incident to sovereignty, and is said “to reside in government as a part of itself.” — Pr■ Marshall, C. J., in The Providence Bank v. Billings &, Pittman, 4 Peters 415. In the formation of the State government, and the distribution of powers pertaining to it in its sovereign capacity, the power to legislate was conferred upon, and vested in, two distinct branches, the Senate and House of Representatives, together constituting the General Assembly of the State of Alabama. This department of the government, composed of the representatives of the people, elected by them to reflect their will, and to be influenced by their Avishes, and amenable to them for an abuse of the trust reposed in them, does not depend for its power upon any specific provision of the constitution, pointing out the particular'subject-matter with reference to which it may legislate. On the contrary, outside of those subjects which are excepted by the bill of rights, from the general powers of Government, the Legislature of the State, as respects all legitimate subjects-matter of legislation, as unrestricted, in virtue of its organization, except in so far as •it is restrained by the State and Federal constitutions. The •sovereignty of the State resides in the three departments upon 'which it has been conferred and distributed — the legislative, executive and judicial. To the first is entrusted the power of making new laws, to correct, repeal, or abrogate old ones; to the second, the execution of these laws ; whilo to the third, it is reserved to make an application of them to particular facts, to ■ determine differences which arise, to punish crimes, to try the validity of statutes by the standard of the constitution, and to protect each department of the government, and every individual in the community in the enjoyment of their chartered rights. — 1 Kent 450.

Subject to the limitations above referred to, the power to levy’taxes pertains to the legislative department of the government, which must determine the objects for which, and the manner in which, they must he levied, being responsible to their constituency for the proper exercise of that power. — 8 How. 82.

We agree with the appellant’s counsel, that the only legitimate object of taxation is, the support and maintenance of ■the government; hut, if by this support and maintenance they mean the expenses incurred by the mere machinery necessarily employed in its administration and conduct, wo aro not agreed in so restricting its sense. We think the power extends to the employment of all those means and appliances ordinarily adopted, or which may be calculated, to develop the resources of the State, and add to the aggregate wealth and prosperity of the citizens ; such, for example, as providing outlets for commerce ; opening up channels of intercommunication between different parts of the State ; improving the social, moral and’ physical condition of the people by wholesome police regulations, and by a judicious system of public instruction ; as also for the protection, security and perpetuity of our government and institutions. We would not, however, attempt to point out all the objects, nor prescribe the limits to which the power of taxation extends ; the case before us does not demand this, but merely whether it is competent for the Legislature to delegate to the city authorities of Mobile the power to tax the owners of real estate, to aid in the construction of the Mobile & Ohio Railroad.

That the power to tax for local purposes may be thus delegated to municipal corporations, seems to he too well settled by the practice of our own and our sister States, and by numerous judicial decisions, to be considered an open question; nevertheless, its importance has induced us to examine it with care.— Perhaps there is not a county in the State, whose courts of roads and revenue have not, under the authority of legislative enactments, assessed and levied taxes for the erection of public buildings, bridges, and other public improvements within their respective limits. So, also, our statute books abound with enactments conferring upon civil corporations the right of taxation by means of by-laws; and this delegation of power has been several times, if not expressly, at least incidentally, sanctioned by this court. /

In Battle v. The Corporation of Mobile, 9 Ala. 234, the question came up as to the validity of a tax assessed by the city under the act of the Legislature of 14th of January, 1844 (Acts p. 175); and Mr. Justice Goldthwaite, in delivering the opinion, says: “ The general question as to the delegation of the taxing power to civil corporations, is not disputed, and, indeed, has been several times decided by us in other cases”; and he cites Intendant of Marion v. Chandler, 6 Ala. 899; Estrabrook v. The State, ib. 653. True, the precise point does not appear to have been discussed in either of these eases ; but it underlies the decision in each of them. The several acts were regarded as valid, and must, therefore, have been esteemed constitutional.

In Talbot v. Dent, 9 B. Monroe 526, it was held, that an act authorizing the city of Louisville to subscribe for stock in a railroad company, and to pay for the same by taxation, the tax payers being entitled to certificates of stock, was not in violation of the constitution.

In the case of Nichol v. The Mayor of Nashville, 9 Hum. Rep. 252, an act of the Legislature of the State of Tennessee, which authorized the corporation of the City of Nashville to take stock in the Nashville & Chattanooga Railroad, and to raise money by taxation to pay the subscription therefor, was held constitutional.—See also Hope v. Deaderick, 8 Hum. 1.

In The Commonwealth v. McWilliams, 11 Penn. Rep. (1 Jones) 61, a similar doctrine was sanctioned; and it was held, that an act, authorizing the supervisors of a township to subscribe for shares of the capital stock of a turnpike company, at the cost of the inhabitants of the township, was constitutional. The case of Parker v. The Commonwealth, 6 Barr 507, would seem to militate against the view here taken ; but, as restricted in the cases of The Commonwealth v. The Judges, &c., of Lebanon County, 8 Barr 391, and The Commonwealth v. Painter, 10 Barr 214, it is not opposed to the validity of the tax now the subject of controversy. It is worthy of remark, too, that the Congressional precedent of submitting the question of the retrocession of the County of Alexandria in the District of Columbia, to the State of Virginia, to the qualified electors of that country, which is relied upon in the last decision above referred to, would seem to conflict with the views taken in the case of Parker v. The Commonwealth. In the one, the vote of the county determined whether they were to remain a part of the District of Columbia: in the other, whether they would have spirituous liquors retailed. Whether the latter can be regarded a violation of the constitution, is a question not now before us, and consequently we express no opinion on it.

The case of Goddin v. Crump, 8 Leigh 120, is in point. The City of Richmond was authorized by the Legislature of Virginia to borrow money to subscribe for stock in the James River & Kanawha Company, and to levy a tax to meet the payment. The question arose there, as it does in the case before us, whether the improvement of the James & Kanawha Rivers was to be regarded, with reference to that city, as a local purpose, by reason of the connection of those streams with its commerce and prosperty. It was held that it was, and tho court sustain the law which authorized the tax.

So, also, in Maryland, in the case of Burgess v. Pue, 2 Gill’s R. 19, the question came up, as to the right to recover a school tax, which had been voted by the taxable inhabitants of a school district. It was objected, that the act making provision for public institutions in primary schools throughout the State, was void, as being opposed to the constitution, by reason of making its validity and operation in any county depend upon the votes of a majority of the voters of such county. The same arguments were urged in opposition to the law which are now insisted on; but the court held it no invasion of the constitution.

We have been favored with a paper containing the decision ef the Supreme Court of Louisiana, in the case of The Police Jury, Right Bank of Parish of Orleans, v. The Succession of McDonough, decided in June, 1853, a case which, in all its leading features, is similar to the one before us, except, that there, a majority, instead of three-fifths, of the tax payers, could authorize the levying of the tax. The court, after a review of the principal authorities, sustain the tax. The reasoning of the court, in response to the objections to the law taken by the counsel, are so apposite to the case before us, that we deem it proper to quote a portion of the opinion. “ It is said,” says Slidell, C. J., delivering the opinion of the court, “that although the police jury might subscribe for stock for itself, it could not subscribe for stock for any one of the inhabitants in their individual capacity ; that the intent and eifect of the law is, to force individuals to take and pay for stock in a railroad, whether they wish it or not, — whether they think the enterprise likely to be beneficial or not; and that such a proceeding is mere spoilation for the benifit of a private corporation.

“ This reasoning, and these assertions, misinterpret the purpose of the law, and involve a doctrine subversive of all taxation.

“ The purpose of the law was, to enable political corporations to aid, by taxation, the completion of public improvements, which, it was supposed by the Legislature, would redound to their local advantage.

“ The burden imposed was a tax, with regard to which each citizen has not a right to decide authoritatively for himself alone, whether the tax is for a"useful purpose, and will redound to his individual advantage. If each citizen can be permitted to complain that his tax has been increased without his individual assent, and for a purpose which he individually disapproves, all government^would be at an end.

“ The will of a legal majority is not tyranny. It is the good of the community to which we belong, which warrants a tax affecting our property. Of this public good, the Legislature, in taxation for general purposes, and the duly constituted local authorities, acting under the express will of the Legislature in a local sphere, and for local purposes, are the judges. The argument for the defendants confounds two distinct powers— the power of taxation, and the power of taking private property for public use. In the latter case, previous compensation must be made; in the former, though in taking a man’s money for taxation you do take his property, the compensation is considered as simultaneously given, in the benefit which, as a citizen, he enjoys, in common with his fellow citizens, in the public welfare and the public prosperity, to the advancement of which the money is to be applied- Such is the theory of taxation. It may be abused, but its exercise cannot be judicially restrained, so long as it is referable to the taxing power citing Thomas v. Leland, 24 Wend. 69; 4 Peters 563.

In the case before us, the Legislature, doubtless, deemed that the benefits to accrue to the city would constitute a just compensation to those who contributed to build this road ; but, as the tax payers themselves, who reside in the city, are presumed to be more familiar with the proposed enterprize, and better ablo to judge of its probable results, as respects their interests,'as a matter of caution and security to them, and as a safe-guard to the minority, three fifths of them are required to concur.

We do not consider this as a delegation of the power of legislation to the people ; but it is a privilege conferred upon a municipal corporation, to be exercised conditionally — that is, in the event the requisite number of persons shall vote in favor of it. We see no difference, in principle, between allowing the corporation to levy the tax, provided three fifths of the taxable inhabitants shall vote in favor of it, and making the exercise of the power to defend upon any other feasible condition ; such, for example, as requiring three-fifths of the aldermen and common council to concur in levying it. We do not think the cases of Thorne v. Cramer, et al., 15 Barb. Sup. Ct. R. 112, and Bradley v. Baxter, ib. 122, opposed to this view. In these cases, the question was not whether the Legislature possessed the power to invest a public corporation with authority to levy a tax upon condition that a certain number of the subjects of the tax should assent to its being assessed, but whether it was competent for the Legislature to evade the responsibility of passing a law, by merely proposing it, and declaring that “the electors shall determine by ballot, at the annual election to be held in November next, whether this act shall or shall not become a law.5' This was a clear delegation of legislative power to the people, as respects a.general law, and is, we think, clearly distinguishable from the delegation of authority to a corporation to do certain things upon the condition of first procuring the concurrence of the local inhabitants, whose interest alone is to be affected thereby. It will hardly be denied by any one, that *7 the Legislature may constitutionally invest municipal corporations with the power of raising by taxation the means necessary for their existence and support by by-laws and ordinances operating upon the inhabitants within their respective local limits. If this power be denied, upon the idea that it is a delegation of the legislative functions, by parity of reasoning all authority to make by-laws and ordain police regulations must be denied, and thus no municipal corporation could exist for any beneficial purpose. Such, however, was not the design of the framers of the constitution. Such corporations, possessing similar powers, ' have existed from the earliest institution of political sovereignty, and have obtained in every civilized government. Indeed, history informs us, that they contributed largely in laying the foundation of liberty in modern nations. —Sir Jas. McIntosh’s * I History of England, vol. 1, pp. 31, 32 ; Angelí & Ames on Corp. 12'.

Upon the whole, we see no objection, either as arising out of the constitution, or even as founded in public policy, to making the exercise of the power here conferred depend upon the expressed will of the taxable inhabitants. On the contrary, we esteem it a wise precaution, tending to enlist the vigilance of self interest as a protection against injustice and oppression.— The objection taken by the court, in the cases cited from 6 Barr and 15 Barb., that such enactments lacked the essential qualities of “ command and prohibition,” is, we think, plausible, but not solid. It is certainly not without the pale of State sovereignty to pass conditional laws, to grant franchises, or even to confer discretionary powers, with respect to which it would be absurd to say they possessed the quality of either command or prohibition.

That the tax payers are made stockholders, is not a valid objection. They incur no additional liability, and their taxes are lessened in the proportion which the value of the stock bears to the amount which they pay. Nor is it a valid objection, that those who have paid over twenty per cent, may have the surplus deducted from the tax to bo collected from them. The object was, as far as practicable, to equalize the burden, and to place those who had previously subscribed upon an equal footing with those whose taxes should secure them stock. The cases already referred to are sufficient to show, that the purpose for which this tax was authorized must be regarded, as respects Mobile, as looal. That it extends beyond the city, and even without the limits of the State, is no objection to this view. The question is, has the city interest in its completion 1 — are the local interests of its inhabitants to be advanced, its real estate to be increased in value, its commerce augmented, its boundaries to be extended, its population increased, and its business generally to be enlarged, by the increased facilities of travel and intercommunication which the road will afford 1 The Legislature of the State, and a majority of three-fifths of its taxable inhabitants, have answered some or all of these question in the affirmative, by enacting and enforcing the tax; and it is not for the court to say that the decision which they have made is' an unwise or impolitic one.

Tne removal of the bar in the James River above Warwick, although without the city of Richmond, was nevertheless a corporate act, as its effects would greatly redound to the interest of the city. —Goddin v. Crump, supra. The aqueduct which furnishes the water for the easement now taxed, has its commencement several miles out of the city; but will any one contend that its erection is not a corporate act 1 Certainly not. But it is useless to discuss the point further. Every one must concede the advantage which will result to a commercial city, from opening up a great thorough-fare for its commerce ; and these advantages will, doubtless, more than compensate for the expenditure which the city will make towards the prosecution of the work. The certainty of the result, however, is a matter which the future alone can develop ; the probabilities of its successful issue can better be determined by those who have decided to bear the burden, in anticipation of the future benefits, than by this court. Thus much upon the constitutional question.

3. But it is argued, that Mr. Stein is not to be taxed for these water works, because they cannot be regarded as real estate. This proposition, like the one first noticed, is substantially covered by the previous decision of this court, in the ease of Stein v. The Mayor &c. of Moble, 17 Ala. 234. If, however, the question was an open one, we should not hesitate to declare, that the easement should be classed as real estate.

The pipes are imbedded in the ground ; they lead from, and are connected with, the reservoir on the land of Stein. These pipes cannot be raised and severed from the land, without removing the soil; they are, therefore, clearly fixtures. — Gray on Fixtures 2; Gibbons’ Law of Fixtures 15. That a portion of them run under the ^public streets by the license of the city, and that the reservoir is without the limits of Mobile, makes no difference. We must look to the nature of the works, and determine their character when viewed as a whole. The aqueducts, the reservoir, the land on which it is located, the pipes and appliances for conducting the water to the various houses, and its distribution, all connected, can with no piopriety of speech be called personal estate; but the materials, thus united, are fixtures, and the exclusive right to vend the water, as predicated upon this combination, is an easement or franchise, incorporeal, yet partaking of the nature of the subject-matter to which it is attached, and is therefore properly classed as real estate.

In The Providence Gas Company v. Thasher, 2 Rhode Isl. R. 15, it was held, that pipes laid in the streets of a city by a gas company, under a grant in their charter, are fixtures, and taxable as real estate. The court said, with respect to the right which the company took under their charter, “ we > think, when exercised, it is an easement; an incorporeal hereditament, like the right of a railroad company to build and occupy their road, or a canal company their canal, under the provisions in their charter.”

We are of opinion, that Mr. "Stein, being the owner of this franchise for twenty years, and in perpetuity unless redeemed by the city after that period, and sole recipient of the profits arise ing from these works for the term mentioned in his lease, as confirmed by the act of the Legislature, should be held responsible for the taxes, having made no provision against his liability in his contract with the city, and securing no exemption in the law which confirms his lease.13 Penn. R. 322 ; 11 Iredell 624. Whether he has not been over-assessed, is a question not brought before us, and one on which we'express no opinion.

Without extending this opinion farther by a citation of the various authorities, most of which will be found on the briefs of the counsel, and which we have examined, we conclude that there is no error in the record, and the judgment is consequently affirmed.