City of Anniston v. Southern Ry. Co.

• Decision Date: 10 November 1896
• Parties: CITY OF ANNISTON v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

20 So. 915

112 Ala. 557

CITY OF ANNISTON v. SOUTHERN RY. CO.

Supreme Court of Alabama

November 10, 1896

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by the city of Anniston against the Southern Railway Company to recover a license tax imposed by plaintiff on defendant and alleged to be due and unpaid. From a judgment for defendant on refusal of plaintiff to amend after a demurrer was sustained to the complaint, plaintiff appeals. Reversed.

The complaint is as follows: "The plaintiff, a municipal corporation, under the laws of the state of Alabama, claims of the defendant, the Southern Railway Company, a corporation, the sum of two hundred dollars, for the privilege or license for engaging in the business, in the city of Anniston, of operating its main line of railroads viz. a railroad formerly known as the East Tennessee Virginia and Georgia Railroad, and a railroad formerly known as the Georgia Pacific Railroad, both being main lines, now and before the commencement of this suit, being operated as and by the Southern Railway Company, for the transportation of freights and passengers, one or both, to and from the city of Anniston to and from other points within the state of Alabama, and keeping an office or place of business in the city of Anniston. Plaintiff avers that on the 10th day of May, 1895, the city council of Anniston adopted an ordinance No. 40, and the same was approved on said date, by F. M. Hight, the mayor, and attested by Geo. T. Anderson, the clerk of said city, said ordinance being in the following words:" (Here is set out the ordinance passed by the city council of Anniston, the first section of which is set out in the opinion.) "And the plaintiff avers that the said defendant, since the passage of said ordinance by the city council of Anniston, and before the institution of this suit, viz. on the 20th day of May, 1895, and up to this date, the said defendant did in the city of Anniston, engage in the business of operating railroads, to wit, the main line of a railroad formerly known as the East Tennessee, Virginia and Georgia Railroad, and the main line of a railroad formerly known as the Georgia Pacific Railroad, now and before the commencement of this suit, being operated as and by the Southern Railway Company, for the transportation of freights and passengers, one or both, to and from the city of Anniston, to and from other points within the state of Alabama, and that said Southern Railway Company, during said time, kept an office or place of business in the city of Anniston, and that during said period the Southern Railway Company used and operated two main lines as aforesaid, running into or through the city of Anniston, and that said defendant, the Southern Railway Company, before carrying on or engaging in said business as aforesaid, neither took out or paid for a license therefor, as required by said ordinance as aforesaid. Wherefore plaintiff claims two hundred dollars of said defendant, to wit, the sum of one hundred dollars for the license of the main line formerly known as the East Tennessee, Virginia and Georgia Railroad, and one hundred dollars for the license of the main line formerly known as the Georgia Pacific Railroad, aggregating two hundred dollars, said railroads being operated by the defendant as aforesaid in the city of Anniston." The second section of the ordinance which is set out at length in the complaint, provided that any person who operated the said railroad in the city of Anniston, as required by section 1, shall, on conviction, be fined not less than fifty, nor more than one hundred dollars, and may also be sentenced to hard labor upon the streets of Anniston, or imprisoned in the city prison, for not less than one, nor exceeding three months, one or both, at the discretion of the court trying the cause.

The demurrer is on the following grounds: "(1) For that the amount sought to be recovered is shown by the complaint to be for a privilege or license tax, and is not a civil contract that can be enforced in a suit of this nature." "(2) For that the ordinance set out in the complaint designates and provides the method of enforcing the collection of such a privilege or license tax, and the plaintiff is bound by the ordinance specifying the details necessary to be pursued for the collection thereof, and cannot proceed as in a civil action of this nature." "(3) For that said complaint fails to state the person who, either in his own right, or as the agents of any person firm or corporation, who engaged in the business of operating a railroad in the city of Anniston without a license, as required by section one of said ordinance, has been arrested, tried or convicted, or fined therefor, or that any person or agents of the defendants has been so engaged in operating a railroad in said city without a license, and has been duly tried, convicted, fined or imprisoned as provided by section two of said ordinance number forty, adopted by the plaintiff on the 10th day of May, 1895." "(4) For that the plaintiff seeks to recover a double license from the defendant, in that the defendant, the Southern Railway Company, is an entity, and is not liable for the payment of two license taxes, as claimed by the plaintiff in the complaint." "(5) For that said complaint seeks or endeavors to collect from the defendant, a corporation under the laws of the state of Virginia, a double license tax, and is not authorized in law or by its character to collect such tax." "(6) For that plaintiff by its complaint seeks to tax interstate commerce; and for that said ordinance set out in said complaint is repugnant to the power conferred on congress to regulate commerce among the several states, and is unconstitutional and void." "(7) For that said license or privilege tax sought to be recovered by the plaintiff from the defendant, as shown by the complaint and the ordinance of the plaintiff therein set forth, is unconstitutional and void, and is a tax upon interstate commerce." "(8) For that the ordinance set out in the complaint is inconsistent with the general laws of the state, in that the state imposes no license or privilege tax upon railroads, and the legislature is prohibited by the constitution of the state from passing any special acts inconsistent with the general laws of the state." "(9) For that the plaintiff, the city of Anniston, is not authorized by the general laws of the state of Alabama to levy or collect any license tax on any business or occupation upon which the state does not assess, levy, or collect such license tax, and the state of Alabama does not levy a license tax upon the railroads for the privilege of operating their business." "(10) For that said ordinance set out in said complaint is violative of the provisions of the constitution of the state of Alabama, even if authorized by its charter, as such constitution provides that the general assembly shall not have power to authorize...