Phœnix Assurance Co. v. Fire Department , 117 Ala. 631 ( 1897 )

BRICKELL, C. J.

The action in which the appellees, averred to compose the Fire Department of the city of Montgomery, were plaintiffs, and the appellant, a foreign fire insurance company, was defendant, was brought to recover of the appellant a penalty of one thousand dollars, for having, without paying to the plaintiffs the sum of two hundred dollars, opened an office in the city of Montgomery, received premiums and taken risks against losses by fire, in and during the year commencing the 1st day of August, 1895, and ending August 1st, 1896. The right of recovery is deduced from certain statutes, upon the validity and construction of which, all the questions presented for revision are dependent.

The first, in order of enactment, is an act approved March 1st, 1870, entitled, “An act to raise a fund for the benefit of the fire companies in the city of Mobile.” Pamph. Acts, 1869-70, p. 288. The .first section declares it unlawful for any insurance company to take any premium within the county of Mobile against fire, or any river or marine risk, or to open an office in the city of Mobile, unless such company first pay into the Fire Department Association of. Mobile, the sum of two hundred dollars, and alike sum annually thereafter, so long as they may continue to take or make insurance, or open an office for that purpose. The second section declares the money so paid shall inure to the use and benefit of the several fire companies in the city of Mobile, and such as are in the future organized, “to enable the fire department to reward superior skill and exertion in the members ; to provide for those who may become sick and disabled in the discharge of their duties as firemen, • or their families.” The third section declares, that for these purposes the money may be drawn by the fire department under such rules and regulations as it establishes. The fourth section declares a penalty of one thousand dollars against any company violating the provisions of the first section, recoverable by suit in the name of the “Fire Department Association;” and the fifth section transfers the recovery after deducting expenses to the same fund to which the tax is appropriated, to be applied to the same purposes.

With this enactment in force, on the 26th February, 1872, an act was approved, entitled ‘ ‘An act to extend to the fire companies in the city of Montgomery, the benefit of the provisions of an act to raise a fund for the benefit of the fire companies in the city of Mobile, approved March 1, 1870.” — Pamph. Acts, 1871-72, p. 390. The act contains a single section which reads: “That the provisions of the above mentioned act * of March 1, 1870, mutatis mutandis, be and the same are' hereby extended and made applicable to the fire companies in the city of Montgomery, and the Fire Department Association of Montgomery; and that, to carry into effect the intent and purposes of this act, the word Montgomery must be deemed and taken as substituted for the word. Mobile, wherever the word Mobile occurs in said act of March 1, 1870. Provided, nothing herein contained, shall in any manner affect or impair the force and operation which said act of March 1, 1870, had, at and before the passage of this act, in favor of the fire companies in the city of Mobile.” This was followed by an act approved February 28, 1873, (Pamph. Acts, 1872-73, p. 262), which reads: “That the true intent and meaning of an act approved February 26, 1872, entitled ‘an act to extend to the fire companies in the city of Montgomery, the benefit of the provisions of an act to raise a fund for the benefit of the fire companies in the city of Mobile, approved March 1, 1870/ are hereby declared to be that the provisions of said act are extended to the fire department of the city of Montgomery.”

The legislative intent in the enactment of the statutes just referred to, relating to the fire companies, and the fire department association of the city of Montgomery, as the same body or organization is indifferently termed, can not be misapprehended. As clearly expressed in the title of the original enactment, it was the extension to the department or association of the city of Montgomery of the benefit of the provisions of the act of March 1st, 1870, pertaining to the like department of the city of Mobile. That act conferred on the fire department of Mobile, consisting of the fire companies in existence at the time of its enactment, and such companies as were subsequently organized, the right to demand and receive from each fire insurance company opening an office in the city of Mobile, or taking any premiums within the county of Mobile against fire, or any river or marine risk, an annual contribution of two hundred dollars. The uses to which the fire department were required to apply the contribution were expressly, distinctly declared, “to enable the fire department to reward superior skill and exertion in the members ; to provide for those who may become sick and disabled in the discharge of their duties as firemen, or their families.” For these, and for no other purposes, was the money to be drawn, under such rules and regulations as the department prescribed. For a violation of any of the provisions of the act — for the opening of an office in the city of Mobile by a fire insurance • company, or the taking premiums within the county of Mobile against fire, or any river or marine risk — a penalty of one thousand dollars is inflicted, recoverable by suit, in the name of the ‘ ‘ Fire Department Association,” and the penalty when recovered is transferred, after deducting expenses, to the same fund to which the contribution is appropriated, to be applied to the same purposes. These are the benefits and' rights which were conferred on the Fire Department of the city of Mobile, for the uses distinctly declared, and these are the remedies it is authorized to pursue, if these rights and privileges are not regarded. We repeat, the legislative intent in the enactment of the original statute relating to the fire companies or department of the city of Montgomery can not be misapprehended — it is plainly and unambiguously expressed; it is the extension to the companies of all the rights and privileges, of all the duties, and of all the remedies, which, by the act referred to, were conferred upon, or enjoyed by, the fire department of Mobile. And the extension was accomplished by the reading of the Mobile act, in its application to Montgomery, as if the word Montgomery occurred instead, wherever the word Mobile occurred. This method of expressing the legislative will may not have been formal; and it may be, that it would have been better if there had not been reference to the act pertaining to Mobile, and the act had in itself declared the rights, benefits and privileges it was intended to confer. The constitution existing at the time of the enactment did not forbid the reference, and it is not for the courts to criticize legislative methods of expressing the legislative will. There was no intent, as is clearly-manifested by the proviso of the original act, introduced from an abundance of- legislative caution, to affect in any respect, or in any degree, the individuality and integrity of the act pertaining to the city of Mobile — on the contrary the intent was that it should remain of full force.

The argument directed against the validity of the act assumes that it is amendatory or revisory, and shadows out, rather than distinctly asserts the proposition, that this is necessarily its character, because of the reference to the Mobile act. Proceeding on this assumption, the further proposition is, that as the Mobile act is not set-out, nor the section or sections amended, it was offensive to the second section of the fourth article of the constitution of 1868, of force at the time of the enactment, which read : “And no law shall be revised or amended unless the new act contain the entire act revised or the section or sections so amended.” It may be, that the legislative intent could have been effected by an amendment of the act pertaining to Mobile. Conceding that to be true, there was no compulsion upon the legislature to prefer that mode of expressing its will, rather than an act original in form, complete and intelligible. A limitation similar to that found in the constitution of 1868, was contained in the constitution of 1865, and the unbroken construction of the limitation was, that it was without application to a legislative act, not purporting to be revisory or amendatory, original in form, complete and intelligible. — Ex Parte Pollard, 40 Ala. 100; Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9 ; Falconer v. Robinson, 46 Ala. 340-48. The corresponding provision of the present constitution is materially variant, reading : “And no law shall be revised, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revised, amended, extended, or conferred, shall be re-enacted, and published at length.” Constitutional limitations of this character, are prospective, not retrospective in their operation — they refer to future and not to past legislation, undoing statutes enacted in pursuance of the rules of legislative procedure then prescribed. — Cooley Const. .Lim., 77. Whether a statute may now be enacted, incorporating the provisions of a pre-existing statute by reference to its title only, we are not required to consider.

The argument misapprehends the real character of the statute. It belongs to a distinctive class of statutes, known or termed as reference statutes, not of infrequent enactment, constitutional limitation not forbidding. Statutes which refer to, and by reference adopted wholly, or partially, pre-existing statutes. In the construction of such statutes, the statute referred to, is treated and considered, as if it were incorporated into, and formed part of that which makes the reference. — Turney v. Wilton, 36 Ill. 385; Sedgwick Stat. & Con. Law, 229, n.; Sutherland, Stat. Con., §§ 147, 257; Knapp v. Brooklyn, 97 N. Y. 520. The two statutes co-exist as separate and distinct .legislative. enactments, each- having its appointed sphere of action; and the alteration, change, or repeal of ,the one, does not operate upon or affect the other. — Sika v. Railway Co., 21 Wisc. 370; Sutherland Stat. Con., §§ 147, 257.

The next, insistence of appellant, involving the more important question of the case is, that the statute imposes a specific State tax — a tax on the. business of fire insurance companies, exercising their privileges. and franchises within the designated locality, and is unconstitutional. It is not insisted the statute is within the limitations upon the legislative power of taxation, the constitution prescribes. Of these limitations, it was justly said by Somerville, J., in Hare v. Kennerly, 83 Ala. 612, that “they are not,grants of the power to levy taxes, but limitations upon that taxing power, which has always been inherent in the State and vested in the legislative branch of the State government, which is the depository of all authority on the subject.” Moreover, it is well settled, that these limitations have relation t-o the taxation of property only — property which must be assessed according to its value — and not to other subjects .of taxation, such as privileges and .occupations. Ex parte City Council, 64 Ala. 464; W. U. T. Co. v. Board of Assessment, 80 Ala. 273 ; Elyton Land Co. v. Mayor, 89 Ala. 477 ; Anniston v. Southern Railway Co., 112 Ala. 557 ; Capital City Water Co. v. Board of Revenue, ante p. 303. The insistence, then, resolves itself info the inquiry, whether for the uses expressed in the statute, taxation may be employed.

“It is implied in all definitions,” it is said in Cooley on Taxation, (2ded.), 103, “that taxes can be levied for public purposes only. Differences of opinion frequently arise concerning the power to impose taxation in. particular cases, but all writers who treat the subject theoretically, and all jurists, agree in the fundamental requirement, that the purpose shall be public, and-they differ, when they differ at all, upon the question whether the. purpose proposed is within the requirement.” As the power is legislative; as without legislative enactment the tax cannot be pi'escribed or appointed, nor its collection authorized, of necessity, the legislature must in the first, instance determine, whether a particular use or purpose, for which a particular tax is. imposed, is public — whether it is of such general utility, or so concerns the public interest or public welfare, that it may be aided or accomplished through the medium of taxation. The determination is not conclusive — “the theory of all governments, State and national, is opposed to the deposit of unlimited power anywhere.” — Loan Association v. Topeka, 20 Wall. 663. Whether the purpose is public, authorizing the exercise of the power, may become a question for the decision of the judiciary, as may become the inquiry whether the uses or purposes 'for which the power of eminent domain is exerted are public,, within the contemplation of the constitution. The presumption is in favor of the correctness of the legislative determination, and it will not be disturbed, unless the presumption is removed, and it is shown clearly the determination is founded in error. “The leading authorities on this point, employ very strong, emphatic expressions.” — Cooley on Taxation, (2d ed.), 103 et seq.

We have examined the decisions referred to by Judge Cooley, and we may repeat, that they “employ very strong, emphatic expressions,” indicative of the gravity and delicacy of the question which becomes judicial, and the hesitation of the courts to nullify legislative action. In one case, (Shenley v. City of Allegheny, 25 Penn. St. 128), it is- said : • “The exercise of the taxing power by the legislature must become wanton and unjust — be so grossly perverted, as to lose the character of legislative function — before the judiciary will feel themselves entitled to interpose on constitutional ground.” In Broadhead v. Milwaukee, 19 Wisc. 624, (s. c. 88 Am. Dec. 711), it was said by Dixon, C. J.: “The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. It cannot in the form of a tax take the money of the citizens and give it to an individual, the public interest or welfare being in no way connected -with the transactions. The object for which money is raised by taxation must’be public, and such as subserve the common interest and well-being of the community required to contribute. To justify the court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear- and palpable — so clear and palpable as to be perceptible by every mind at the first blush. In addition to these, I understand that it is not denied that claims founded in equity and justice, in the largest sense of the term, or in gratitude or charity will support a tax. Such is the language of the authorities.” In another very careful and thoughtful opinion it is said : ‘ ‘If there be the least possibility that making the gift will be promotive in any degree of the public welfare-, it becomes a question of policy and not' of natural justice; and the determina-, tion of the legislature is conclusive.” — Booth v. Town of Woodbury, 32 Conn. 118.

The general principle upon which courts proceed, in determining the validity of legislation, is of peculiar force in j udicial revision of the legislative determination of the purposes for which taxation may be imposed — the court must be satisfied clearly, that the limitations of the constitution have been infringed, or the legislation must stand and be enforced. The reasons are obvious, and are thus stated by Judge Cooley : “For, in the first place, there is no such thing- as drawing a clear and definite line between purposes of a public and those of- a private nature. Public and private interests are so commingled, in many cases, that it is difficult to determine which predominates; and the question whether the public interest is so distinct and clear as to justify taxation is often embarrassing to the legislature, and not less so to the judiciary. All attempts to lay down general rules whereby the difficulties may be solved, have seemed, when new and peculiar cases arose, only to add to the embarrassment instead of furnishing the means of extrication from it.” — Cooley on Taxation, (2d ed.), 106.

The purposes for which this tax is imposed are not private or individual — nor is it a stimulus to the performance of a private individual duty, as distinguished from a public duty ; nor are the benefits the public are expected to derive, contingent 'or incidental. The prevention and suppression of calamities, involving the destruction of property, peril to life, the disturbance of public security, is a governmental function and duty, aid and assistance in which it is the duty of every citizen to render. Sacred as are the rights of private property, jealous as is the law of every infringment or invasion of them, emergencies or occasions may arise in which they are subordinate and must yield to public necessity. Salus populi suprema lex, is a maxim founded on the “implied assent on the part of every member of society, that his own individual welfare shall, in cases of necessity, yield to that of the community, and that his property, liberty, and life shall, under certain circumstances, be placed in jeopardy, or even sacrificed for the public good.” — Broom’s Legal Maxim, 1. It is upon this maxim and the principle it embodies, when the danger is pressing and imminent, that public officers or private citizens, may, without incurring liability, to prevent the spread of an existing conflagration, enter upon the premises of a citizen, raze or demolish houses, or other structures, as they may destroy or use any property to obstruct or prevent the advance of a hostile army. In such an event, there is no duty or obligation resting upon the government, or any of its agencies to make compensation for the property injured or destroyed —compensation is matter of grace and not of right. 2 Dillon Mun. Corp., § 955, et seq.; Cooley Const. Lim., (6th ed.), 739 ; 2 Kent. 338 ; Russell v. Mayor, 2 Denio, 461; Bowditch v. Boston, 101 U. S. 16; U. S. v. Pacific Railroad, 120 U. S. 227. In Russell v. Mayor, supra, it was said : ‘ ‘The best elementary writers lay down the principle, and adjudications upon adjudications have for centuries sustained, sanctioned and upheld it, that in a case of actual necessity, to prevent the spreading of fire, the ravages of a pestilence, or any other great public calamity, the private property of any individual may be lawfully destroyed for the relief, protection or safety of the many, without subjecting the actors to personal responsibility for the damages which the owner has sustained.”

The duty of aiding and assisting in the prevention or suppression of conflagrations, resting.upon every citizen having the physical ability for its performance, the freedom from all liability, if the necessity is actual, or reasonably apparent, is of the same grade and character with- that of the rendition of military service. It is a common duty, and if a few in a community ■ voluntarily assume it, it is not. because its obligation rests upon them, specially, but because they are more willing to encounter .its dangers, to endure its hardships, and bear its labors and burdens.. Experience has shown that the duty is better performed, the danger of. conflagration lessened, suppression of them more readily accomplished, and the general security promoted, when the duty is specially committed to organized companies, or associations of citizens ; and they exist in all well regulated towns and cities. The character of the duty, thus committed to a few, who voluntarily assume it, is not changed — it is not private, but public — though to .its performance, it may be, the members of such companies or associations can be compelled. The company, or association, may derive existence and organization from municipal authority only, or from special legislative enactment. Whether existence and organization be derived from the one authority, or the other, the. duty is identical, and the members of the companies are not servants, agents, or officers of the State or of the municipal corporations. They are public servants or agents, appointed to the performance of a public duty; and in the absence of a statute providing otherwise, for their conduct, or their torts, if any they should commit, there is no liability resting on the municipal corporation ; nor is there liability upon the State, which is never liable for the misfeasances or malfeasances of its ministerial agents, or officers. — 2 Dillon Mun. Corp., § 794, et seq. ; 7 Am. & Eng. Encyc. of Law, 997, and notes.

Similar statutes exist in several of the States, and the precedent for them is probably found in the legislation of New York, the history of which was traced in Trustees of Exempt Firemen’s Fund v. Roome, 93 N. Y. 313 ; and.the validity of the legislation has been sustained since an early day after its original enactment. — Fire Department v. Noble, 3 E. D. Smith, 440. A similar statute exists in Illinois, and in Wisconsin, the validity of which was sustained in Firemen’s Benevolent Association v. Lounsbury, 21 Ill. 511, (s. c. 74 Am. Dec. 115) ; Fire Department of Milwaukee v. Helfenstein, 16 Wis. 136. In State v. Merchants Ins. Co., 12 La. Ann. 862; Philadelphia Association v. Wood, 39 Penn. St. 73; San Francisco v. Ins. Co., 74 Cal. 113 ; Henderson v. London & Lancashire Co., 135 Ind. 23 (s. c. 20 L. R. A. 827), similar statutes were pronounced unconstitutional. These decisions have been examined with much care — they are controlled by constitutional limitations not found in our present constitution, nor any of its predecessors ; and in some of them are indications of theories of the extent of 'legislative power and of the duty of courts in judicial revision of its exercise, we are not at liberty, if we had the inclination, to recognize and adopt.

The theory which has prevailed, since our earliest history as a State, is, .that the constitution is an instrument of limitation and restraint upon power already plenary, so far as it respects the functions of government and the "objects of legislation; that the grant to the General Assembly of legislative power, is a grant of all legislative power residing in the people as a sovereign community, .subject only to such limitations and qualifications as may be expressed in the constitution, or in the federal constitution ; that courts are without power to set aside or annul legislative enactments, because it may be supposed they conflict with natural right, sound morality, or abstract justice; that to justify a judicial sentence of nullity, it must be clearly apparent that the enactment is violative of some provision of the constitution, State or federal, or that it is an exercise of authority not legislative m its nature. — 1 Brick. Dig., 369, §§ 6-8 ; Gunter v. Dale County, 44 Ala. 639 ; Davis v. State, 68 Ala. 58; Mangan v. State, 76 Ala. 60; Moog v. Randolph, 77 Ala. 597.

The constitution enumerates, with much of care, and read in the light of former constitutions, it may be said, particularly and specially in reference to the exercise of the sovereign power of taxation, the things which the General Assembly may not do ; and to borrow the expressive language of Chief Justice Black, in the great and leading case upon this subject of Sharpless v. Mayor, 21 Penn. St. 147, (s. c. 59 Am. Dec. 759) : “If we extend that list, we alter the instrument, we become ourselves the aggressors, and -violate both the letter and spirit of the organic law as grossly as the legislature possibly could. If we can (add to the reserved rights of the people, we can take thejn away; if we can amend, we can mar ; if we can remove the landmarks which we find established, we can obliterate them; if we can change the constitution in any particular, there is nothing but our own will to prevent us from demolishing it entirely.”

The'tax is imposed on all fire insurance companies, whether foreign or domestic, and in this respect, is unlike the New York, Illinois, and Wisconsin statutes, which were limited to foreign companies.- The appellee, is a foreign, not a domestic company,-and as to it, the statute may be regarded, as it was regarded by the New York and Wisconsin courts, as prescribing a condition upon which lawfully, it could do business within the designated locality. It is more in accordance with our constitution, and our theories of constitutional construction, to regard it, as it was intended by the legislature; as a tax, and not as a police regulation; and as such it was regarded by the supreme court of Illinois, in Firemen's Benevolent Asso. v. Lounsbury, supra. It is not infrequent, that statutes have for their objects the raising of revenue and the police of the State, and blending them is not offensive to the constitution. — Battle v. Corporation of Mobile, 9 Ala. 234; Youngblood v. Sexton, 32 Mich. 406, (s. c. 20 Am. Rep. 654).

There is no force in the suggestion that the tax is not uniform and is wanting in equality. It is not an imperative requirement of the constitution that taxes, other than taxes upon property, shall be uniform or equal. This tax is imposed on all fire insurance companies, doing business in1 the designatedTocality, and has in it every element of uniformity and equality which is requisite to

support a specific tax on privileges or occupations. In West. Un. Tel. Co. v. State Board, 80 Ala. 280, it was said by Clopton, J.: “The rule of uniformity does not require that all subjects be taxed, nor taxed alike. The requirement is complied with, when the tax is levied eq ually and uniformly on all subjects of the same class and kind. It extends to the class upon which the tax shall operate. Different occupations may be taxed at different rates, and some may be altogether exempted ; and the requirement of uniformity is not infringed, if the various classifications include all occupations similarly circumstanced and of the same kind.”

Nor can we perceive the force of the objection that the “Fire Department Association” is made the recipient of the tax, and charged with the duty of its disbursement, or rather, administration. “The right to tax,” said Black, C. J., in Sharpless v. Mayor, supra, “depends'on the ultimate use, purpose and object for which the fund is raised, and not on the nature or character of the person or corporation whose intermediate agency is to be used in. applying it. A tax for a private purpose is unconstitutional, though it pass through the hands of public officers ; and the people may be taxed for a public work, although it is under the direction of an individual or private corporation.” The-recipient of a tax is not material in the consideration and determination of its validity or character. All' public moneys are destined eventually to individual use and benefit, though raised for the payment of the public debt, for the maintenance of government, or for other governmental expenditures. It is the purpose for which the money is raised, that supports a tax, and it is within legislative discretion to intrust the collection and disbursement to public officers, or to private individuals or corporations.

In conclusion, we cannot single out aiiy clause or section of the constitution the statute offends — we cannot say that it was not an exercise of legislative power ;. and neither being clearly apparent, the duty of the courts is to enforce it according to the legislative will and intent. If, as is complained, the tax is onerous — if as compared with the taxation of the business of other corporations, there is inequality — these considerations belong to the legislative department, and its determination is conclusive upon the judiciary.

We find no error in the rulings of the circuit court, and the judgment must be affirmed.

Affirmed.