Barnett v. State

• Decision Date: 16 December 1924
• Docket Number: 5 Div. 537
• Citation: 20 Ala.App. 396,102 So. 483
• Parties: BARNETT v. STATE.
• Court: Alabama Court of Appeals

102 So. 483

20 Ala.App. 396

BARNETT v. STATE.

5 Div. 537

Court of Appeals of Alabama

December 16, 1924

Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.

Albert Barnett was convicted of violating the road laws, and he appeals. Affirmed.

J Osmond Middleton, of Clanton, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

Reynolds & Reynolds, of Clanton, amici curiae.

BRICKEN P.J.

Appellant was convicted in the circuit court of Chilton county for hauling timber or lumber with a motor vehicle on the public highways of Chilton county, without having paid the license tax therefor as provided by law, and in violation of the road laws of Chilton. The tax which appellant had failed and refused to pay was levied by section 45 of the road law of Chilton county, which provides as follows:

"Section 45. For the purpose of maintaining the public roads, bridges and ferries of the county, it is hereby ordered that license tax equal to one-half of the state license tax be levied and collected for the year 1924 on all motor vehicles used for hauling timber, lumber or minerals over the public roads of the county."

Appellant demurred to the complaint upon several grounds; his demurrer was overruled and the trial, being had by the court without a jury, resulted in a judgment of guilt of the defendant as charged in the complaint, and a fine of $15. From that judgment, the defendant prosecutes this appeal.

Counsel for appellant contend that section 45 of the road law of Chilton county is unconstitutional and void, first, because it is in violation of section 211 of the Constitution, which provides that all taxes levied on property in this state shall be assessed in exact proportion to the value of such property; and second, that the acts of the Legislature authorizing the counties to levy such taxes as were levied in this case violated section 45 of the Constitution, which among other things, provides that each law shall contain but one subject, which shall be clearly expressed in the title. Counsel also contend that the complaint failed to set forth sufficient facts showing that it was the duty of appellant to pay the tax levied, granting that the tax law was valid. We do not think there is any merit in either of these contentions. The tax of Chilton county was levied by the proper county authorities under and by virtue of the general statutes of this state authorizing the counties to make such levies. Acts 1915, pp. 573-577 (Acts 1923, p. 291, § 22). Tax laws like the one in question have been repeatedly upheld by the decisions of this court and the Supreme Court. The tax in question is not a property tax, and is not within the purview of section 211 of the Constitution. It is a privilege or license tax, and therefore does not violate section 211 of the Constitution. State v Parker, 5 Ala.App. 231, 59 So. 741; Capital City Water Co. v. Board of Revenue, 117 Ala. 303, 23 So. 970; Goldsmith v. Huntsville, 120 Ala. 182, 24 So. 509; Mangeldorf v. State, 8 Ala.App. 302, 62 So. 373.

Nearly every question in this case has been recently decided by the Supreme Court of Alabama in the case of Robert Smith v. State, (Ala.Sup.) 102 So. 122, carried from this court to the Supreme Court by certiorari, in manuscript. In that case it was expressly decided that the tax in question was not a property or ad valorem tax, was applicable only to vehicles commonly used by the owner, and in a general sense devoted by him to this purpose; that it was not a tax upon the vehicle which the owner might casually or occasionally use for such purpose. In the dissenting opinion of Justice Thomas, many similar statutes and levies made by counties similar to the one in question, and many decisions of the court reviewing such statutes, are cited. We are of the opinion that the decision of the court in that case is necessarily decisive of this case.

It is one of the cardinal rules in the construction of statutes that when the question as to whether a particular statute is or is not constitutional, all doubts should be resolved in favor of the constitutionality of the act. In the case of ...