Alexander v. Mayor of Alexandria , 3 L. Ed. 19 ( 1809 )

9 U.S. 1 (1809) 5 Cranch 1

CHARLES ALEXANDER
v.
THE MAYOR AND COMMONALTY OF ALEXANDRIA.

Supreme Court of United States.

February 8, 1809.

C. Simms, for plaintiff in error.

Swann, contra.

MARSHALL, Ch. J. delivered the opinion of the court, as follows, viz.

In the proceedings in this cause two errors are assigned by the plaintiff.

1st. That the corporation had no power to assess the tax for which the judgment was rendered.

2d. That the judgment is irregular, because rendered on motion.

Both these points are to be decided by the several acts of the legislature of Virginia respecting the town of Alexandria.

In support of the first it is contended,

1st. That the corporation has no power to tax property not belonging to an inhabitant of the town; and Charles Alexander was not an inhabitant.

2d. That the property, on which this tax was assessed, was not within the corporation.

The words of the act of 1779, which is the first act shown to the court that confers the power of taxation, are these "The mayor, recorder, aldermen and common councilmen shall have power to erect and repair work-houses, houses of correction and prisons, or other public buildings, for the benefit of the said town; and to make by-laws and ordinances for the regulation and good government of the said town; provided such by-laws or ordinances shall not be repugnant to, or inconsistent with, the laws and constitution of this commonwealth, and to assess the inhabitants for the charge of repairing the streets and highways."

For the plaintiff it is contended that the power of taxation, here given, is, in terms, confined to assessments made on the inhabitants. On the part of the defendants it is urged that the express power to assess the inhabitants is for the sole purpose of improving their streets, and that an express power is also given to make expensive establishments, the means of erecting which could be furnished only by taxes; that the power to make by-laws must therefore necessarily be construed to involve the power of taxing, at least for these objects.

Without deciding this question as depending merely on the original law, it is to be observed that acts in pari materia are to be construed together as forming one act. If in a subsequent clause of the same act provisions are introduced, which show the sense in which the legislature employed doubtful phrases previously used, that sense is to be adopted in construing those phrases. Consequently, if a subsequent act on the same subject affords complete demonstration of the legislative sense of its own language, the rule which has been stated, requiring that the subsequent should be incorporated into the foregoing act, is a direction to courts in expounding the provisions of the law.

The act of the 16th of December, 1796, contains this clause: "It shall and may be lawful for the mayor and commonalty of the town of Alexandria to recover, of and from all and every person or persons holding land within the limits of the said town, and who have no other property within the said town on which the taxes or assessments imposed on such property for paving the streets therein can be levied, the amount of such taxes or assessments, by motion in the court of the county or corporation where such person or persons reside."

This clause most obviously contemplates a full right to assess taxes on property lying within the town and belonging to non-residents; for it gives a right to recover such assessment in the court of any county or corporation in which the owner of such property may reside. It is either a legislative exposition of a power formerly granted, or the grant of a new power.

If the words of the enacting clause could admit of doubt, the proviso would remove that doubt. It is that the clause which has been recited should not "be so construed as to empower the court to give judgment against any person or persons, residing out of the limits of the corporation of Alexandria, and owning ground therein, having no house on it, where the service, to compensate which the tax or assessment has been or may be imposed, has been or may be performed before the last day of February, 1797; but for the collection of such tax the same means may be used which would have been lawful before the passage of this act."

This proviso shows, as clearly as words can show, the sense of the legislature in favour of taxing the land of non-residents.

The same act appears to the court to remove any doubt, which might otherwise exist, respecting the second branch of this question.

Upon a critical examination of the act of the 13th of December, 1796, the court would feel much difficulty in declaring that it comprehended in the corporation of Alexandria only that ground which was actually divided into half-acre lots, and the court would be the less inclined to take this distinction, because no inducement for making it is to be found in the nature of the thing, or could have existed with the legislature.

The preamble states the lots, represented as contiguous to the town of Alexandria, to have been laid off by the proprietors, in lots of half an acre each, within certain limits which are described by the law. The enacting clause drops the quantity of which a lot is to consist, and declares that every lot, or part of a lot, within the limits described, which had been or should be improved, should be made part of the town of Alexandria. The act of 1798 annexes to the town all the unimproved lots within those limits. The case finds that the property on which the tax for which the judgment is rendered was imposed, is within those limits, and was laid off as part of the town in squares of two acres, but these squares were not actually subdivided into half-acre lots.

The term half-acre used in the preamble of the act of 1796 is a description of a circumstance probably contained in the representation on which the law was founded. But it is impossible to consider that part of the representation as material to the law. If the squares were regularly laid out, the subdivisions of those squares were unimportant, for that subdivision would always depend on the caprice of purchasers and sellers. Lots and parts of lots might be separated, or annexed to each other, at will. The enacting clause, therefore, of the first act, comprehends every lot, or part of a lot, within the described limits, which had been or should be improved; and the enacting clause of the act of 1798 comprehends every lot within those limits. That a square comprehended in those limits, laid off as part of the town, and containing precisely four half-acre lots, should be considered as excluded from the town, and not liable to taxation for the improvement of the streets, for the single reason that the proprietor had not marked thereon the lines of subdivision, would not be readily conceded.

But if a doubt respecting the sense of the legislature could otherwise be entertained, that doubt is removed by the act of the 16th of December, 1796, already recited, which particularly respects the power of taxation, and gives the remedy by motion.

That act drops the term "lot," and uses the term "land." It authorizes the corporation to recover by motion against any person "holding land within the limits of the town" "the taxes or assessments imposed thereon." The proviso, which has been also recited, uses the term "ground," and considers every person owning ground within those limits as liable to be taxed. The 3d section of the same act declares, "that when the proprietor of any lot of ground within the said town shall fail to fill up any pond of water, or remove any nuisance," as directed by the corporation, the mayor and commonalty may exercise corporate powers in the case. If the squares in question do not consist of lots, because the subdivisions have not been actually marked, yet they consist of land, they consist of ground, and being within the limits of the town, they are, in the opinion of the court, within the corporation, and subject to taxation.

But the remedy in the actual case is not by motion. The act affording this remedy gives it only in a specified case. It is given only in the case of "a person or persons holding land within the limits of the said town, and who have no other property within the said town." This is not, as has been said, a direction to the officer of the corporation, but is a description of the precise case in which alone the remedy by motion is allowed. It being found that Charles Alexander had property in the town from which the officer could have levied the tax assessed on him, a motion for that tax was not sustainable. If the corporation did not choose to risk levying the tax by seizure, they might have instituted a suit to determine their right.

This court is unanimously of opinion, that the circuit court erred in giving judgment for the plaintiff on motion, and therefore directs that the said judgment be reversed and annulled.