Baldwin v. City Council , 53 Ala. 437 ( 1875 )

BRICKELL, C. J.

These cases present a common question, the power of the city council of the city of Montgomery to impose a tax on shares of the capital stock of national banks. These shares are subject to taxation by State authority, under the limitations imposed by the act of Congress, as has been declared by several decisions of the supreme court of the United States. Van Allen v. The Assessors, 3 Wall. 573; People v. Commissioners, 4 Wall. 244; Bradley v. The People, Ib. 459; Lionberger v. Rouse, 9 Wall. 468 ; National Bank v. Commonwealth, Ib. 353; Tappan v. Merchants’ National Bank, 19 Wall. 490.

It is not necessary, in the view we aré constrained to take of these cases, to inquire whether the tax levied and sought to be collected by the city council offends the limitation imposed by the act of Congress. Under the charter of the city, the power to levy taxes is confined to a tax on real estate, personal property, specifically enumerated, certain pursuits, callings, professions or occupations, or business of a particular kind, or the receipts or income from some particular business There is no general power to impose taxes on personal property, nor any specific power which can be construed to authorize the tax of which the appellants complain. In the absence of special constitutional restriction, it is certainly true the legislature may confer on the municipalities it creates, such measure of power to levy and collect taxes as it may deem expedient, not greater or other than that it possesses. It is equally certain that this power is capable only of clear and unequivocal delegation. When express power to levy and collect particular taxes is conferred,the power to levy and collect other taxes is excluded. Or, if particular subjects of taxation are enumerated, the corporation has not capacity to enlarge them. The charter of the city, limited as it is to taxation of real estate, special occupations, or pursuits, enumerated personal property, within no one of which shares in a corporation, or certainly in a bank, whether existing under State or Federal law, can be embraced, does not authorize the tax the collection of which is sought to be prohibited.

The case was heard and decided in the circuit court on a demurrer to the petition. The act of December 7th, 1866 (Pamph. Acts, 1866 — 7, p. 144), authorizing the city to aid in building the South and North Alabama Railroad, to issue bonds, and to levy such tax on the real and personal property in the city, to pay the principal and interest of such bonds, as might be necessary, not exceeding two per centum per annum, before it became operative, must have been sanctioned by the voters of the city, and the bonds issued. This record does not show the issue of such bonds, and, of consequence, it is not proper to inquire whether that act au~ thorizes the tax of which complaint is made. As the case is presented, the inquiry preceding all others is the capacity of the city council under the acts of incorporation (without regard to the act of December, 1866), to impose the tax. We áre bound to declare the capacity is not conferred by the acts of incorporation.

The judgments must be reversed, and the cause remanded.