Phoenix Assur. Co. of London v. Fire Department of City of Montgomery

• Decision Date: 14 May 1898
• Parties: PH×NIX ASSUR. CO. OF LONDON v. FIRE DEPARTMENT OF CITY OF MONTGOMERY. [1]
• Court: Alabama Supreme Court

23 So. 843

117 Ala. 631

PH×NIX ASSUR. CO. OF LONDON v. FIRE DEPARTMENT OF CITY OF MONTGOMERY. ^[1]

Supreme Court of Alabama

May 14, 1898

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by the fire department of the city of Montgomery against the Ph nix Assurance Company of London. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought by the appellee, which was averred to be composed of the several fire companies of the city of Montgomery, to recover of the defendant the penalty of $1,000 for having, without paying to the plaintiff the sum of $200 opened an office in the city of Montgomery, and transacted business pertaining to insurance companies. In the complaint the plaintiff claims of the defendant the sum of $1,000 because, as averred therein, "during the year commencing, to wit, August 1, 1895, and ending, to wit August 1, 1896, the defendant, being an insurance company did take or receive premiums, within the county of Montgomery and state of Alabama, against fire risks, or did, during said time, open an office for the business of insurance against fire, in the city of Montgomery aforesaid, without having first paid into the fire department of the city of Montgomery the sum of two hundred dollars for said year, as said defendant was-by the provisions of the fourth section of an act of the general assembly of Alabama approved March 1, 1870, entitled 'An act to raise a fund for the benefit of the fire companies in the city of Mobile,' and an act of the general assembly of Alabama approved February 26, 1872, and entitled 'An act to extend to the fire companies of the city of Montgomery, the benefit of the provision of an act to raise a fund for the benefit of the fire companies in the city of Mobile,' which last-named act was approved March 1, 1870, and also an act of the general assembly of Alabama approved February 28, 1873, entitled 'An act to declare the meaning of an act to extend to the fire companies of 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,' which said last-named act was approved February 26, 1872-required to do. The complaint then avers that the defendant, being an insurance company, and doing business, as alleged, without having paid the sum of $200, had violated the provisions of the statutes in such cases made and provided, and had forfeited to the plaintiff the sum of $1,000, wherefore it instituted suit. To this complaint the defendant demurred, upon the following grounds: "(1) That said act of February 26, 1872, is void, in this: That it purports to amend an act of the legislature approved March 1, 1870, and does not contain the act or section or sections amended, in compliance with Const. Ala, 1868, art. 4, § 2, wherefore the defendant prays judgment. (2) That plaintiff has no cause of action, for that said act approved February 28, 1873, is void, in this: That said act purports to amend or revise the act approved February 26, 1872, and act of March 1, 1870, and does not contain the act or section or sections as amended, in compliance with Const. Ala. 1868, art. 4, § 2. (3) That said acts approved February 26, 1872, and February 28, 1873, under which plaintiffs claim recovery, are void, in this: That they attempt to revise or amend an act approved March 1, 1870, but do not contain the act or section amended or revised, as required by the constitution of 1868. (4) That said act of 1870 is void, in this: That it is in conflict with the constitution and laws of Alabama, viz.: (5) That said act requires a private corporation, defendant, to pay to another private corporation an annual tax of $200. (6) That said act requires a private corporation (defendant) to pay to a private organization (plaintiff) $200 annually, to be used 'to reward the superior skill and exertion of the members [of plaintiff], to provide for those who may become sick or disabled, as firemen, or their families, and the constitution requires such specific annual tax as may be levied by the legislature shall be used exclusively for the maintenance of public schools. Const. 1868, art. 11, § 13. (7) That said act requires payment of said tax from any company doing business in the county of Mobile, although they have no office and do no business in the city of Mobile." This demurrer was overruled, and the defendant thereupon interposed eight pleas. The first plea was the general issue, and the second plea, after averring that the plaintiff sought to recover $1,000 claimed and payable by reason of the act approved February 26, 1872, which sought to extend to the fire companies of 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, set out said act in full, and then averred that said act was void and unconstitutional, in that it attempts to revise or amend the act approved March 1, 1870, and does not contain the entire act or the section or sections thereof revised or amended, which was in violation of section 2 of article 4 of the constitution of 1868. The third plea sets out at length the three acts under which the claim of the plaintiff is founded, which were approved, respectively, on March 1, 1870, February 26, 1872, and February 28, 1873, and then avers that said act of February 26, 1872, attempting to amend or revise the act for the benefit of the fire companies of the city of Mobile, and extending the provisions thereof to the fire companies of the city of Montgomery, was void, in that it did not contain the entire act revised or the section or sections amended. Each of these acts is sufficiently set forth in the opinion of the court. The fourth, fifth, sixth, seventh, and eighth pleas were as follows: "(4) That said act approved February 28, 1873, 'to declare the meaning of' said act approved February 26, 1872, is void, in that it amends or revises said act of February 26, 1872, but does not contain the entire act revised, or the section or sections amended. (5) That said act 'for the benefit of the fire companies in the city of Mobile,' approved March 1, 1870, is void, in this: That said act is contrary to Const. Ala. 1868, art. 1, § 25, by requiring defendant, a private corporation, to annually pay the plaintiff, a private corporation, a tax. (6) That said act 'for the benefit of the fire companies in Mobile,' approved March 1, 1870, is void, in that it is contrary to section 13, art. 11, Const. Ala., viz.: 'The general assembly shall levy a specific annual tax upon insurance companies and insurance agencies, which shall be exclusively devoted to the maintenance of public schools,'-whereas this act gives said tax to a private corporation, a fire company. (7) That said act of 1870, approved March 1st, for the benefit of the fire companies of Mobile, under which plaintiffs claim a recovery in this cause, was repealed by the legislature of Alabama before

1894. (8) That plaintiffs are private individuals; that the thousand dollars sued for in this cause is a penalty claimed of defendant for that it did not pay said plaintiffs two hundred dollars as a tax for doing business in the city of Montgomery for one year, commencing August 1, 1895." To each of these several pleas the plaintiff demurred, upon the following grounds: "(1) It clearly appears in and by said plea that the act of the general assembly of Alabama approved February 26, 1872, did not attempt to revise or amend the said act of March 1, 1870, but merely extended or conferred the provisions of last-named act to and upon the fire companies of the city of Montgomery, and is therefore not violative of the provisions of the constitution of 1868 mentioned in the plea. (2) Because said act of the legislature set out in said plea is not violative of any of the provisions of the constitution mentioned in said plea. (3) Because there is by the act of the general assembly of Alabama, set out in said plea, no such amendment of the said act of the general assembly of Alabama, approved March 1, 1870, as is prohibited by section 2, art. 4, of the constitution of Alabama of 1868." To the fourth plea the plaintiff demurred upon the following additional grounds: "(1) Because said fourth plea fails to set out the acts of the general assembly approved February 26, 1872, and February 28, 1873, referred to in said plea. (2) Because said fourth plea only states a conclusion of law of the pleader, and does not state the fact upon which conclusion is based. (3) Because said act of February 28, 1873, does not purport to revise or amend any other act, but simply to declare the true intent and purpose of said act of February 26, 1873. (4) Because said fourth plea fails to state what act it is alleged is revised or amended by said act of February 28, 1873." To the fifth plea the plaintiff demurred upon the following additional grounds: "(1) Because said fifth plea fails to set out said act of March 1, 1870. (2) Because said fifth plea simply states a conclusion of law, without setting out the facts from which said conclusion is drawn. (3) Because said plea does not aver or show that said tax is not required to be paid for the use or benefit of a public purpose. (4) Because said act of the general assembly of Alabama approved March 1, 1870, does not require the payment of tax for the benefit of any private corporation, but for a public purpose. (5) Because of the provisions of said act approved March 1, 1870, the money so required to be paid by said insurance companies shall inure to the use and benefit of the several fire companies, to enable the fire department to reward superior skill and exertion in the members, to provide for those...