Winter v. City Council , 65 Ala. 403 ( 1880 )

BBICKELL, C. J.

— This case involves two questions : 1st, whether the city council had authority to levy and assess the taxes which were paid by the appellant; 2d, whether the taxes were paid voluntarily, or under compulsion, or that which the law deems the equivalent of compulsion. An action for money had and received will lie against a municipal corporation, which may have illegally exacted and received it as taxes. The action can not, however, be supported, unless there is the concurrence and co-existence of two conditions : 1st, the absence of authority for the imposition of the tax, rendering its assessment, and all proceedings taken for its collection, not merely irregular, but absolutely void; 2d, the payment of it, not reluctantly — not under protest only ; not with mere notice that the validity oí the tax is disputed, and the duty and liability to pay denied — but under compulsion, or duress, to avoid arrest, or to prevent the seizure of goods. — Cooley on Taxation, 565; Dillon Mun. Cor. § 751; Town Council of Cahaba v. Burnett, 34 Ala. 600. We shall consider the first question only — the validity or invalidity of the levy and assessment of the taxes.

An act of the General Assembly was approved December 7, 1866 (Pamph. Acts, 1866-7, pp. 144-6), entitled “ An act to authorize the city of Montgomery to aid in building and equipping rhe South and North Alabama railroad, from Montgomery to Limekiln.” The first section, referring to propositions and terms which, on the 5th December, 1866, had been agreed upon by the city council and the board of directors of the railroad company, for the aid of the city in building and equipping the road from the city -to Limekiln, directed that, on the third Monday in December, 1866, an election should be held, to take the sense of the legal voters on these propositions. The second section directed, that the voting at the election should be by ballot; the voter favoring the propositions writing or printing the word ‘ Aid ’ on his ballot, and the voter differing writing or printing on his ballot the words ‘ No Aid ’. The third section required the mayor to appoint managers of the election, who were to certify to him its result; which he was to cause tobe entered on the journal or minutes of the city council. The fourth section authorized the city council, and the board of directors of the railroad company, to carry into effect all of said propositions, if they were at the election favored by a majority of the votes. The fifth section empowered the city council to issue the bonds of the city, for one million of dollars, in such sums, and to run for such length of time, not exceeding thirty years, and to hear such rate of interest, not exceeding eight per-centum per annum, as the said city council may deem proper. It authorized the council to levy such tax as may be necessary, upon the real and, personal property in said city, to pay the principal and interest of said bonds; Provided, that the tax should not, in any one year, exceed tivo per-centum on the value of the property taxed, nor five per-cent, on incomes. The sixth section entitled the holders of the bonds to speedy process, by mandamus, to compel the levy and collection of the'tax to pay the interest and principal of the bonds, as the same became due ; and in the event of the dissolution of the city council, the bondholders were empowered to elect trustees, who were clothed with the full authority to levy and collect taxes for the payment of the principal and interest of said bonds. The seventh section authorized the city council, in levying the tax, in each year to levy for an aggregate sum, greater than was.required to pay interest and principal of the bonds falling due in that year, and to remit, in whole or in part, the tax on the homesteads of the poor.

Under this act, an election was held, of which the mayor gave notice, having appointed managers of each precinct, or voting-place in the city, and having made publication of the terms and propositions which had been agreed upon by the board of directors of the railroad company and the city council. The election resulted in favor of the city aiding the railroad company; but it is averred, that the managers did not certify its result to the mayor, as directed in the third section of the act. The propositions agreed upon between the directors of the railroad company and the city council, so far as material, were, that the city council should issue the bonds of the city, to a company contracting to build and equip the road, to the amount of one million of dollars ; the company to give the city council an obligation, with satisfactory securities, not to dispose of the bonds at less than an agreed rate of discount, and for the faithful application of the .proceeds of the bonds to the building of the road from Montgomery to Limekiln; and to transfer to the city stock in the railroad company, which they were to receive on the completion of the road. “ The whole of this stock to be transferred, if the city council furnish oil the money necessary to build the road. It it does not furnish all the money, then to transfer an amount of the stock which shall bear the same proportion to the amount received,, as the money furnished by the city council bears to the cost of the road.”

The city council issued the bonds of the city, to a company contracting to build and equip the road, to the amount of five hundred thousand dollars, having thirty years to run, payable in the city of New York, bearing eight per-cent, interest; stipulating that they should be sold at not less than ninety cents, and that the contracting company should transfer to the city four hundred and fifty thousand dollars of the stock of the railroad company. An obligation,¿with sureties, was given by the contracting company, to the city, with conditions as specified in the propositions. The taxes paid by the appellant were levied and assessed for the payment of the interest on the bonds so issued.

It is insisted by the appellant that the act under which the taxes were levied and assessed is void, because it does not set out, in hcec verba, or in substance, the propositions referred to in its first section, which had been agreed upon by the board of directors of the railroad company and the city council, upon which the sense of the voters of the city was to be taken, through an election. There was, at the time the act was passed by the General Assembly, no provision of the constitution, which could be construed as requiring that these propositions should have been embodied in the act; no mode of legislative procedure prescribed, whiph was offended by their omission. To justify a court in pronouncing a statute void, it must be apparent that it is an exercise of powers not' legislative — of power committed to one or more of the other departments of the government, or that it is violative of some provision of the constitution, State or Federal. Whether the policy of the statute is sound — whether it will promote the public good —whether it is in harmony with natural right, or with abstract justice, are not judicial questions. — Dorman v. State, 34 Ala. 216. Nor is it a question for the courts, whether, in the expression’of its will, the General Assembly has observed a care and caution, corresponding to the importance of the subject before them, or the magnitude of-the interests to be affected. The duty of the court is the ascertainment of the legislative intent, looking alone to the words of the enactment, when these are clear, intelligible, and unambiguous; and, when necessary, considering all the circumstances attending the enactment, and the ends it was intended to accomplish. It rested wholly in legislative discretion, whether these propositions should be embodied in the act, or to determine what reference to them was necessary. There is no uncertainty in the act; there could be no doubt or difficulty in ascertaining what were the propositions; and certainly the appellant had none in ascertaining and identifying them.

The second point of contention is, that, as the managers of the election did not, as directed by the third section of the act, certify its result to the mayor, the issue of the bonds of the city was without authority, and the levy and assessment of taxes, to pay the interest on them, void. The argument, as we understand it, is, that there was no authority for the issue of the bonds of the city, unless a majority of the qualified voters, at the election, had voted to aid the railroad company; that the managers of the election, appointed by the mayor, were by the act constituted a special tribunal, clothed with the exclusive power of ascertaining the result of the election, and could only manifest their exercise of the power, and the result of the election, by a certificate to the mayor, which must have been entered on the journal or minutes of the city council. It is obviously true, that the city council must, before the bonds were issued, have ascertained that the condition existed upon which their authority to issue them depended. But is it true, the statute devolved on the managers of the election the exclusive power, or any power, of determining the result of the election ? The only duty, to which they were specially appointed by the statute, is certifying to the mayor the result after the election. But they had also the duties ordinarily pertaining to managers of an election — the supervision of the election; the receiving of votes ; the keeping of poll-lists ; the counting of the ballots, ascertaining and declaring the number of votes cast, and how many favored, and how many opposed, the proposed aid to the railroad. These are mere ministerial duties, and when performed, every official function of the managers would have terminated. If the certificate they were directed to make had been made, it would have been evidence on which the mayor and council could have acted; and of the results of the election would have been prima facie evidence, whenever it was necessary to prove them. But we do not find in the act any indication of a purpose that the validity of the election shall depend on their making the certificate, or that it shall be the exclusive evidence of its results. The mayor and city council were charged with the duty of ascertaining whether a majority of the voters had in fact declared that aid should be by the city extended to the railroad company, on the terms proposed. In the event a majority had so declared, they only had duties to perform; or, in the event had not so declared, it was their duty not to proceed in the execution of the propositions, and to resist any effort which could have been made to compel them into execution. The certificate of the managers would have been evidence, on which they could have acted, if it was unquestioned. But it was not conclusive, or exclusive evidence. Inquiry into, and the determination of the fact, on which their official responsibility depended, was the duty of the mayor and council, from which no laches on the part of the managers of the election could relieve them. The result of the election, not the evidence of it coming from any particular source, must ha,ve controlled their official action. If the managers made no certificate of the result; or, if they did, and error in it was apprehended; examination of the ballots and poll-lists, and a computation of the votes, or the resort to any satisfactory evidence to ascertain the result of the election, was the duty of the mayor and council. When they ascertained that a majority of the votes had been cast in favor of the propositions, the issue of the bonds of the city was not only within their province, but a duty to which they could have been compelled.

It is insisted that the tax was illegal and void, because assessed only on the real estate of the city, to the exemption of personal property. The grant to the city council is of power “ to levy such tax as may he necessary, upon the real and personal property in said city,” &c; It is a grant of legislature, governmental, rather than of corporate power. Whether the city council are, by the terms of the grant, compelled to levy upon both species of property, and to the same rate upon each — whether they are without discretion in the exercise of the power, and may not apportion the tax, so that the species of property deriving the larger benefits from the building and equipping of the railroad, or which can best bear it, should bear the burdens of the tax, we shall not consider. If it is conceded to the appellant, that the taxes should have been levied and assessed alike, and in the same proportion, on real and personal property, the omission of personal property is a mere error, an irregularity, for the correction of which the appellant had appropriate and adequate remedies, before making payment of the tax. The error does not render the assessment void; it does not deprive the city of a just claim to so much of the tax on the real estate as it ought in good ■ conscience to have borne. Errors, omissions, misconstruction of powers, on the part of the officers of a municipal corporation, in the levy of taxes, or in their collection, must be of frequent occurrence. It would be most dangerous to hold, when the question arises collaterally, that they vitiate the entire levy, — as well that which is certainly within, as that which may be without the power of the corporation. The mistakes of its officers might work the destruction of the corporation, and the deprivation of the local government it was established to administer. Through a period of five years, the appellant paid the taxes now sought to be regained. They passed into the city treasury, and were disbursed in payment of the interest on the city bonds. The times for the levy and assessment of taxes on the real and personal property within the city, for those years, have passed. There can be no levy and assessment of them now ; and if the appellant can recover the taxes paid by her, the result would be, that she would escape all taxation ; not only that which ought not to have been paid, but that which ought to have been. The same right of recovery would pertain to every other tax-payer; and the corporation would be paralyzed, incapable of continued existence, and the exercise of its powers of government for the good of the city. If the tax should have been levied alike on personal and real property — if the city council was without discretion to impose it on the one only — and injury resulted to the appellant, by mandamus she could have compelled the assessment of both species of property; and this was her appropriate remedy. From it she would have derived the full measure of right to which she is entitled, and no serious injury could have resulted to the city. — 2 Dill. Mun. Corp., § 616, and note. •

We do not discover that the city council varied the propositions which were submitted to, and approved by the voters, at the election. The proposition was, when fairly construed, that the city should extend aid to the railroad company, by the issue of its bonds, to an amount not exceeding one million of dollars, which were to be employed in building and equipping the road. It was not pecuniary gain, nor any of the advantages which would accrue to an individual from membership in the railroad company, that formed a motive or inducement for clothing the city with the power to aid in the construction of the road. The benefits which would result to the commerce and industry of the city, the increased facilities of access to it, were the purposes for which the power was conferred. If these could be secured without involving the city in a debt of one million of dollars, it was not only within the power, but it was the duty of the city council, to secure them for the least practicable sum. The power to create the larger included the power to create the lesser debt. Omne majus continet in se minus.

There is no room for pronouncing the levy and assessment of the taxes paid by the appellant void; and consequently this action can not be maintained.

The judgment is affirmed.