The majority opinion strikes down what is generally referred to as the Drainage Act as violative of sections 212 and 23 of the Constitution of 1901. This act was assailed as being in violation of section 222 of the Constitution, and in the case of Harkins v. Smith, 204 Ala. 417, 85 So. 812, this court held the act did not contravene that constitutional provision, and the judgment of the court below to the contrary was reversed and one here rendered.
The court in the Harkins Case quoted with approval the definition from other authorities of drainage district as being a form of governmental corporation with limited power, a public or quasi public corporation, a political subdivision of the state, acting as the agent thereof. In short, it is very clear that these drainage districts are but governmental agencies, created in the manner provided by the act merely for convenience in the further administration of its provisions. In the Harkins Case the language of the opinion clearly indicates that the so-called tax referred to was not a tax within the generally accepted meaning of that term, but was merely a betterment assessment or betterment tax, similar in all respects to sidewalk improvements, storm sewers, and the like; the court saying:
"The cost incident to such improvements is imposed upon or assessed against the lands benefited in the nature of anassessment or betterment tax, such as is authorized by cities and towns for the improvement and maintenance of streets, sidewalks, storm sewers, and drains. (Italics supplied.)"
In the Harkins Case two of the judges dissented, and in expressing their views it was stated that for the most part they were in accord with the majority opinion with respect to the creation and status of such governmental agencies as the drainage district.
I take it, therefore, that the court is united upon the proposition that the drainage district is in fact but a governmental agency, and that the tax in question is only a betterment assessment or betterment tax as those terms are generally known and understood.
Section 212 of the Constitution of 1901 reads as follows:
"The power to levy taxes shall not be delegated to individuals or private corporations or associations."
Section 2 of article 11 of the Constitution of 1875 reads as follows:
"No power to levy taxes shall be delegated to individuals or private corporations."
It thus appears that this latter constitutional provision was carried forward in the Constitution of 1901 without material change. In Mayor, etc., v. Klein, 89 Ala. 461, 7 So. 386, 8 L.R.A. 369, it was stated that as a necessary inference the terms taxes and taxation have respectively the same meaning wherever found in article 11 of the Constitution. Section 2, above quoted, was a part of article 11, and, in speaking of this article, the court in the Klein Case said:
"By the very terms employed throughout the article, the taxes or taxation, whether state, county or municipal, are those which make up the general revenues of the one or the other political division, as the case may be; revenues which come from all the property in the territory, and go to defray general governmental expenditures, as distinguished *Page 299 from special outlays to provide for purely local exigencies."
The court in the Klein Case, speaking with reference to a betterment tax, a sidewalk improvement, further said:
"Are the provisions of article 11, referring as we have seen to general taxes and taxation, and to such only, expressed limitations on the power of the Legislature with respect to local assessments on property to pay for local improvements, which benefit that particular property? We think not. The overwhelming weight of authority is against such a construction, and in favor of the validity of such assessments. * * * A tax, it is said, is a contribution to the general fund, the amount of it is taken from the individual, and nothing which benefits him individually, as distinguished from the mass of citizens, is given in the place of it. He pays, and by the amount he pays is poorer than he was before. Not so with an assessment of the class we are considering. The property owner pays it, but, in legal contemplation, he loses nothing. He receives the value of his money in the betterment of his property, and, in addition to this, he is benefited to the same extent that all other citizens are, in that a thoroughfare of the city in which his property is situated, and he probably lives, is improved. The authorities almost universally take such an imposition, though confessedly laid under the taxing power, out of the category of taxes and taxation, as those terms are employed in organic limitations on legislative power to levy or authorize the levying of taxes, and in general statutes."
Many authorities are there reviewed, and former decisions of this court holding to the contrary were expressly overruled, and it was held provisions either in statutes or constitutions relating to general taxation, whether for state, county, or municipal purposes, have no application to special assessments made against the abutting property for street improvements, which have been benefited and enhanced thereby, to the value of the property so assessed.
In 1 Page and Jones on Taxation, etc., special reference is made to the Klein Case, and to the fact that former decisions to the contrary were overruled, and that, since the decision in that case, this state has been in line with the overwhelming weight of authority. In section 334 of this volume the authors point out the nature of drainage acts, and that the improvements by drainage and its beneficial effect upon the land drained are matters of general knowledge which have often been commented upon by the courts; that the improvement is not only of special benefit to the property owner, but is of a public character, in that the public health is thereby subserved.
As previously stated, this court seems to be in agreement upon the proposition that this is in fact a betterment assessment or a betterment tax. The Klein Case expressly held that such assessment or such betterment tax did not come within any of the provisions referring to taxation or taxes in article 11 of the Constitution of 1875. Section 2 of article 11 of that Constitution, as previously noted, has been carried forward, without material change, and now constitutes section 212 of our present Constitution. It was thus carried forward with the construction as disclosed by the Klein Case upon this article, and, to my mind it necessarily and logically follows that same construction adheres to section 212 of the Constitution of 1901. It must follow then as the night follows the day that under the decision of this court in the Klein Case section 212 has no reference to a betterment tax or betterment assessment.
Of course, it is well understood, and needs to be stated only to be remembered, that the Legislature has boundless power, except when restrained or limited by constitutional provisions. I respectfully submit that under the construction of this court of article 11 in the Klein Case there is no limitation upon the legislative power as to this betterment tax in section 212 of the Constitution of 1901.
Section 23 of the Constitution of 1901 corresponds with section 24 of the Constitution of 1875; they are practically the same. That portion of this constitutional provision which this act is said to violate reads as follows:
"The right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association."
The betterment assessment provided for by the Drainage Act is not forced subscription, nor is it a tax for the benefit of any corporation, individual, or association within the meaning of the foregoing provisions.
The betterment tax was again considered by this court in City Council of Montgomery v. Birdsong, 126 Ala. 632, 28 So. 522, where it was expressly held that such tax did not contravene section 24 of the Bill of Rights. Indeed, it was not questioned so far as the property is specially benefited; the court saying:
"It is not denied, that such assessments against particular property for street and sidewalk improvement may be constitutionally authorized, to the extent that the property is specially and particularly benefited."
Quoting from the Supreme Court of the United States in Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443, the opinion proceeds:
"The principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement." *Page 300
It thus appears that a betterment assessment is not a forced subscription or a taxation for the benefit of any individual or corporation within the meaning of section 23 of the Constitution. The holding in the Birdsong Case directly related to section 24 of the Bill of Rights which is carried forward, without material change, as section 23 of our present Constitution, and should be decisive of the question that a betterment assessment or betterment tax is not violative thereof.
The fact that the betterment assessments in the Klein and Birdsong Cases related to sidewalks in cities and the Drainage Act relates to improvements on rural property can make no difference in principle. We are dealing with legislative power and with the question as to whether or not the Constitution contains any prohibition or limitation upon the power thus expressed in the passage of the Drainage Act.
The majority opinion seems to proceed upon the theory also that the drainage district is given authority to levy the tax, and the case of Schultes v. Eberly, 82 Ala. 242, 2 So. 345, is cited. This case involved the validity of an act giving to school trustees the power to levy a direct tax. It in no manner touched upon the question of betterment assessments or betterment taxes dealt with in the Drainage Act where the drainage district does not levy a tax.
If the tax may be said to be levied at all in the strict sense of that word, it is levied by the Legislature, and the Drainage Act merely provides a method of assessment in order that the property improved shall not bear a greater burden of cost of improvement than the benefits that accrue therefrom. The difference between the levy of a tax which is a legislative power and the assessment which is administrative and quasi judicial was pointed out by this court in the recent case of Coal Mining Co. v. Hawkins, 210 Ala. 359, 98 So. 26.
The majority opinion cites with approval as sustaining the conclusion reached the recent case of Bradley v. State,210 Ala. 166, 97 So. 543. This authority would seem to sustain the ruling of the court in the instant case. The writer dissented in the Bradley Case, and is of the opinion that it is fundamentally unsound and should be overruled. While the Bradley Case relates to a different character of improvement, that of public roads, yet, in principle, in my opinion, it cannot be distinguished, but I forego further discussion.
The question here involved is one of importance, and, being fully persuaded that the decision was unsound, I feel it proper to state my views as briefly as consistent with the questions involved. I therefore dissent.
On Rehearing.