Winter v. City Council

79 Ala. 481

• Court: Supreme Court of Alabama
• Decided: December 15, 1885
• Status: Published

Opinion

SOMERVILLE, J.

The bill is filed by the City Council of Montgomery, as a municipal corporation, to enforce the payment of back taxes, due for nine consecutive years, and assessed against the real property belonging to a married woman. A demurrer was filed, in which many causes were assigned, and among others the objection, that the complainant’s remedy, was at law, and not in a court of equity, which had no jurisdiction, as was urged, to enforce a tax lien. This demurrer was not, however, insisted on, nor ruled on by the court, but was waived by a mutual agreement of the parties litigant, by which it was stipulated that the pending controversy should be compromised upon certain specified terms, and should be submitted to the chancellor for the rendition of a decree by him, “upon the basis of this agreement.” It is quite obvious that the effect of this agreement, bearing date October 18th, 1882, was to abandon the demurrer, and all objections raised by it, so far as this could be accomplished by consent. The argument is made, however, that notwithstanding this agreement, the Chancery Court has no jurisdiction of the subject-matter in controversy, and that consent of parties can not confer such jurisdiction. Let us examine the nature of this suit, with the view of testing the correctness of the application of this principle.

The subject-matter of the suit, as we. have said, is the enforcement of a lien, given by statute, against the separate estate of a married woman, for taxes assessed according to law. In Perry County v. Railroad Company, 58 Ala. 546, it was said that, according to a preponderance of the authorities, taxes levied and assessed become a legal liability on the tax-payer, and may be enforced by an action at common law, unless the statute gives a remedy which is intended to be exclusive. It was not necessary, however, to go further in that case than to hold, that a levy and an assessment of taxes create a legal liability on the tax-payer to pay. Desty, in his treatise on Taxation, says: “The preponderance of authorities establishes, that either debt or assumpsit may be sustained for the recovery of taxes, as debt lies for a sum of money certain due by statute.” 2 Desty Tax. § 126. In U. S. v. Lyman, 1 Mason, 482, it was ruled by Judge Story, that debt would lie to recover duties upon imported goods; and this ruling was followed in Meredith v. U. S., 13 Peters, 486. In accordance with this view, it was again decided in Savings Bank v. U. S., 19 Wall. 227, that debt will lie for taxes in the name of the Government, or State. There are many other well-considered cases which support this principle, upon the theory, that an undertaking or obligation to pay is created by law, being implied from the existing duty, just as, in this and many other States, debt is commonly brought for a mere penalty created by statute.—Strange v. Powell, 15 Ala. 452; Perry County v. Railroad Company, supra; City of Dubuque v. The Illinois Cen. R. R. Co., 39 Iowa, 56; Cason v. Newsom, 8 Heisk. (Tenn.) 446; City of Memphis v. Looney, 9 Baxt. (Tenn.) 130; U. S. v. Pacific R. R. Co., 4 Dillon, 66; Greenl. Ev. (14th Ed.) §§ 270, 288; Bishop on Contr. §§ 5, 72; 2 Desty on Tax. § 126. We adopt this principle, as the sounder and better one, although there are many respectable authorities to the contrary. If no action at law would lie for taxes, much inconvenience and injustice would result. A tax-payer might often escape the payment of his just proportion of the public burdens, imposed for the support of government, by the wrongful act .of a tax-collector in extending the payment of his taxes, either from gross negligence, or a weak spirit of accommodation.

It can not be doubted, that there may be circumstances under which a court of equity would take jurisdiction of the enforcement of a tax-lien ; although the rule may be, that it will decline to do so without the existence of some ground of equitable cognizance, other than the mere fact that there is a lien. In State v. Duncan, 3 Lea (Tenn.), 679, a bill of this character was sustained, the question of equitable jurisdiction to enforce such liens being one especially under consideration. The argument there was the same as that urged here — that the lien being one created by statute, and the mode of its enforcement being expressly given, all other modes were excluded by necessary implication. The lands had been sold for ten years’ successive taxes, and purchased by the complainant, the sales being void for irregularity in the proceedings. It was held, that the statutory remedy was not adequate in a case of complication and embarrassment like the one in hand, where the purpose was to collect back taxes; and the bill was accordingly sustained, as was also asimilar one in Edgefield v. Brien, 3 Tenn. Ch. Rep. 673. The courts of Tennessee, we may add, have always adopted the view that taxes were a debt, for which an action at law would lie.

The remedy of the complainant in the present case is shown to be attended with many embarrassments. The lien for taxes is created by law, and is a legal right which exists independently of the remedy-for its enforcement. This remedy given by statute is gone with the lapse of years, because of the failure of the proper officer to enforce it at the authorized time. The owner of the property is a married woman, against whom a personal judgment will not lie, and who is not suable in an action of ordinary debt at law, because of her coverture. This fact is often, of itself, a ground of equitable cognizance. 1 Pomeroy’s Eq. Jur., § 160; Fariss v. Houston, 78 Ala. 250. We might safely assert, that the allegations of the complainant’s bill, setting out the foregoing facts, show a proper case for the jurisdiction of a court of chancery. But this we need not now decide. It is'unimportant that the averments of the bill were defective, or wanting in fullness, and, therefore, that it was for many reasons demurrable, or that the bill itself was wanting in equity, because the complainant had a complete and adequate remedy at law. These defects, if they existed, were capable of being cured by amendment; and the consent of the defendants, that a decree should be rendered by the chancellor, was tantamount to an agreement that all amendable defects should be supplied by intendment.- These we will accordingly regard as having been made. Consensus tollit errorern. What we decide is, that, in this case, the Chancery Court'was not without jurisdiction to render a decree "condemning the property of the defendant, Mrs. Winter, to the payment of such taxes as were due by her to the City Council of Montgomery, under the allegations of complainant’s bill. Abraham v. Hall, 59 Ala. 386; Westmoreland v. Foster, 60 Ala. 448; State v. Duncan, 3 Lea, 679, supra.

The only decree which the chancellor was authorized to render, however, was one based on the written agreement of the parties. If we can clearly see from the evidence that his decree conflicts with the stipulations of this agreement, it is our duty to declare it to be so far erroneous. It is an important feature of this agreement, that it recognizes a prima facie liability on the part of the defendant to pay all taxes levied to pay the current expenses of the city, as weil as those levied under the act of December 16th, 1876, from the year 1873 to the year 1881, inclusive. From this amount there is an express agreement that certain deductions may be made, some absolutely, and others on conditions specified.

It is insisted on the part of the appellants, that they should have been permitted to enter into a collateral investigation of the amount and valuation of the personal property located in the city of Montgomery, during the year 1873, with the view of showing what rate of taxation was necessary to be levied in order to pay the interest on the railroad bonds for that year. The grant of power to the city council being “ to levy such tax as may be necessary upon the real and-personal property in said' city,” it may be that both kinds of property sh'ould have been equally subjected to taxation. In Winter v. The City Council of Montgomery, 65 Ala. 404, we held, that a levy upon real property only was not void, and that the omission to tax personal- property was at most only an irregularity, for the correction of which an injured tax-payer would have an adequate remedy by mandamus. Conceding the construction contended for to be correct, the onus was on the defendants to show, by proper evidence, that another and different rate of taxation than that adopted by the city council was necessary ; their action being in its nature legislative and governmental rather than merely corporate, as was held by this court in the case last cited. The testimony offered by the defendants, to show the amount and valuation of all the personal property in the city of Montgomery in the year 1873, was incompetent, and properly rejected. The witnesses who were introduced, failed to show that they possessed any knowledge of the fact. Their opinion, in the absence of such knowledge, was mere speculation. The first exception to the report of the register raises only this one point, and was properly overruled.

As it was provided by item 6 of the agreement, that “ no taxe'á were to be paid on any property which did not belong to the defendants” at the time the taxes were assessed, it was competent for them to show that the ownership of any of the property, so assessed was in another person at the time of such assessment. It appears that this was attempted to be done by the introduction of certain deeds and affidavits, referred to in the register’s note of testimony. As these papers are no where set out in the record, we can not know their purport or contents, and must presume the finding of the register and of the chancellor to be correct.—Toon v. Finley, 74 Ala. 343.

Eor a like reason, we decline to disturb the finding of the chancellor on the question whether the sale by the city of certain property for the taxes of 1873 extinguished the demand of the city for such taxes. There appears to have been an agreement of counsel as to the facts attending the sale of this property, which was in evidence before the register; but it has been omitted from the record, without, any evidence of its contents. Non constat but that it sustained the conclusion reached in the decree, and so the law presumes. The obvious condition, upon which it was impliedly agreed that this matter should be snbmitted to arbitration, was that the arbitration, if had at all, should be completed within' thirty days from date, which was never done.

It is further contended that, under the terms of the agreement of October 18th, 1882, the Chancery Court was excluded from considering the question of the validity of the city’s claim of taxes levied to pay interest on certain bonds issued in aid of the South and North Alabama railroad ; that this matter of controversy was agreed to be submitted to arbitration, and the jurisdiction of the courts was thereby ousted. We do not construe the agreement to have this effect. It has been held by this court, that a mere agreement to arbitrate a controversy “ can not be enforced at law or in equity, because no one can effectually waive his right to have his suits determined in the proper courts provided by the laws of his country.”—Bozeman v. Gilbert, 1 Ala. 90; Stone v. Dennis, 3 Port. 231. However this may be, the authority of arbitrators, under a submission at common law, could always be revoked by either party before the making of the award, and a mere agreement to arbitrate is not considered a defense to an action.—2 Greenl. Ev., §§ 79, 69. IIow far, if at all, these principles may be affected by our present Code of laws governing statutory arbitrations, is not a question before us.—Code, 1876, § 3536. Our proposition is, that it was never contemplated by the agreement of the parties that the chancellor should not consider the-question of the validity of the railroad tax. The agreement itself, upon the basis of which the decree was rendered, recognizés a prima facie liability for all taxes levied by the city to pay the bonds on which this interest was due. It was agreed that the cause should be submitted for decree within thirty days from October 18th, 1882, and that the defendants should have one, two and three years, in which to pay “the amount found due.” Inasmuch, however, as a case was then pending in this court involving the legal validity of this tax, it was agreed that, in the event that the decision was adverse to the tax, “it should be stricken from the amount claimed by said city.” If no decision was made by the fifteenth of July, 1883, the question was to be submitted to arbitration, on demand of either party, “ and,” it was added, '•‘•no collection of said railroad taxes shall be made, until the decision of said arbitrators, provided such decision is made by July 15th, 1884.” This provision operated only as an agreement to stay the collection of the tax for the time, and under the conditions stipulated, and not to waive the plaintiff’s right to have it reduced to judgment by the court to which the whole controversy had been submitted by the terms of the agreement. If its invalidity had been pronounced, in the manner agreed on, the amount of the tax could have been deducted from the decree of the court. And such we believe was the intention of the parties.

Note by Eeporter. — On a subsequent day of the term, in response to an application for rehearing, the following opinion was delivered : STONE, C. J. — The preservation of life, liberty, property— of public peace, good order, good morals and public health, are everywhere acknowledged to be powers and functions of civil government, whose exercise is necessary to the very existence of social order. Municipal government can not exist, in any form, without human instrumentalities, for the support of which a revenue is indispensable. Hence it is, that revenue is the life-blood of the municipality,- without which it must perish. Hence it is, that government can not barter away its power to levy and collect taxes. The payment of taxes is, in part, the price every citizen pays for the protection of himself and his property, which the government extends alike to all. The government owes to its citizens of every class the same measure of protection, and it makes itself wickedly derelict, if it fails to discharge this sacred obligation. Is there not an obligation equally binding on the citizen, to contribute his proportion of the revenue — the life-blood — so necessary to the existence of the municipality? Can human ingenuity conceive of a mere civil obligation that is higher, or more binding, than this? So important did the legislature esteem the duty of paying taxes, that they declared a lien on the property assessed for their payment; and this lien follows the property, into whose hands soever it may be transferred. Quoting from Burroughs on Taxation, we, in Perry County v. Railroad Company, .58 Ala. 546, 564, said: “Taxes are a political necessity. If the law raises a promise to pay, that oue of its citizens may not obtain the services or goods of another without compensation, surely it will raise it that the State may exist. The tax is a personal charge against the citizen, notwithstanding a lien upon the property may be given by statute for its payment.”

There is, in our opinion, no force in the suggestion, that the agreement authorized only a personal decree against the defendants, and not a condemnation of the property. The law made the taxes properly assessed a. lien on the property, and there is no clause in the agreement which can be construed to waive the right. The decree did not create the lien. It only seeks to furnish a remedy for its enforcement. The declaration of the statute, as found in section 15 of the city charter, to the effect that the assessment “shall have the force and effect of a judgment and .execution, and may be collected by levy and sale of the property,” on giving proper notice, does not impair this lien in any respect. — 'Acts 1869-70, p. 366. It only furnishes warrant of law for the seizure and sale of the property, as in cases of execution sale on process issued from the Circuit Courts of the State.

We find no error in the chancellor’s decree, and it must be affirmed. “

Clopton, J., not sitting. There are authorities which hold, that when the statute provides a remedy for the enforcement of taxes, such remedy is in its nature exclusive, and precludes all other modes of redress. We submit if this is a just presentation of the question. The liability to pay taxes imposes both a legal and moral duty, which can and should in no sense be assimilated to a statutory penalty. It is, in this case, and generally is, more than amere legal and moral obligation. There is a lien on the property for its payment; a lien which adheres to it, no matter who may own the title ; a lien which a bona fide purchase will not override. Pure allodium, — “absolute ownership of property, without recognizing any superior to whom any duty is due on account thereof ” — does not exist under our system. Liability to taxation, and to the assertion of the right of eminent domain, rests on all estates as a servitude or infirmity. And can it be, that the mere failure of an officer to do his duty sternly, whether caused by accident, carelessness, ignorance of the proper remedy, inattention or undue indulgence, is a forfeiture of this right, — a right pertaining, not to the delinquent officer, but to the municipality ? In Perry County v. Railroad Company, supra, we said : “Levy and assessment of taxes create a legal liability on the tax-payer to pay.” We adhere to that doctrine, with all its implies. Married women can not be sued at law, on personal contracts, or legal liabilities. They can only be reached by proceeding in equity against their property, and holding it accountable. They must be made parties, but no personal decree can be rendered against them. • It is contended that, under the averments of the bill in this case, we must treat Mrs. Winter’s separate estate as statutory ; and inasmuch as the law does not empower her to incur a binding money obligation, she can not be proceeded against, upon an implied promise to pay. From these premises, the conclusion is claimed, that no liability for taxes can be fastened on her property. We concede the premises — concede that, as her estate is made to appear in the present suit, she can make no binding personal contract to pay money. Does the alleged conclusion follow? Under no circa instances, save those mentioned in the statute, can a woman, pending her coverture, make any disposition of her statutory estate, or fasten a liability, charge, or incumbrance upon it. But'there are many categories in which such estate may be made subject to judicial determination. An unmarried female has undoubted capacity to make binding personal contracts, and is subject to the same methods for their enforcement, as the opposite sex is. ITer subsequent marriage, leaving such liability unliquidated, changes the tenure by which she holds her property into statutory separate estate. Yet it does not relieve it from' the payment of • her debts contracted before coverture. So, she may be a trustee, made so by appointment, or may acquire property which is charged with a trust. A purchase of real property in her name, the purchase-money remaining unpaid, in whole or in part, is a familiar illustration. In such case, equity deems that she holds the land in trust for the payment of the purchase-money, and orders the land to be sold, unless the liability is otherwise removed. The true principle is, not that the married woman’s property is placed beyond the reach of the law, but that, pending the coverture, she can make no contract which charges her statutory estate with the payment of money. Strong v. Waddell, 56 Ala. 471; Marks v. Cowles, 53 Ála. 499; Lee v. Sims, 65 Ala. 248. It is further contended that the consent decree found in this record is not binding on Mrs. Winter, by reason of her incapacity to give such.consent. My own opinion is, that the decree is right, without the aid of her consent. But, in the absence of some special reason, such as fraud in its procurement, a consent decree is as binding on a married woman as on a feme sole. — Lee v. Sims, 65 Ala. 248, 254. We Ijave, then, this case: Taxes have been assessed against the real estate of a married woman, which raises a moral obligation and legal liability for their payment; that obligation is emphasized by the legislative declaration that a lien exists on the property, assessed for its discharge; a married woman owns the property, and no personal suit can be maintained against her. If a bill to subject the property can not be maintained, the city is without a remedy to coerce the payment of these taxes, and must lose them, notwithstanding the just claim it has, and. the lien created for its security. The bill contains too many elements of equity to be dismissed out of this court. Application for rehearing denied.