City of Birmingham v. Southern Express Co.

• Decision Date: 21 December 1909
• Citation: 164 Ala. 529,51 So. 159
• Parties: CITY OF BIRMINGHAM v. SOUTHERN EXPRESS CO.
• Court: Alabama Supreme Court

51 So. 159

164 Ala. 529

CITY OF BIRMINGHAM v. SOUTHERN EXPRESS CO.

Supreme Court of Alabama

December 21, 1909

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by the City of Birmingham against the Southern Express Company. From a judgment for defendant, plaintiff appeals. Affirmed.

R. H Thatch, for appellant.

John London and McDaniel, Alston & Black, for appellee.

MAYFIELD J.

Section 2086 of the Code of Alabama of 1907 provides for the levy and collecting of an annual state license or privilege tax of $4,000 from express companies to do business in this state. The same section provides that, in addition to this state tax, the several cities of the state may each levy and collect of such companies a like tax, based on and graded by the population, as fixed by the federal census of 1900, and fixes the amounts of the tax according to a given population to wit, those of 500 or less, $2.50, and so on, thus increasing the amount as the population increases, until the highest amount is reached, which is $500 for those having a population of over 30,000. This statute was first passed February 18, 1893 (Acts 1892-93, p. 693), was codified in the Code of 1896, and therein appeared as section 3914. It was thereafter amended by act of March 4, 1903 (Acts 1903, p 189). As thus amended it was again codified, and, as amended by the code committee, now appears as section 2086 of the Code of 1907. This statute also has a judicial and constitutional, as well as legislative, history.

The statute, as originally passed, was first construed in the case of Douglass v. Anniston, 104 Ala. 291, 16 So. 133. The statute in that case was held to be a substitute for all previous laws authorizing the levy and collection of privilege and license taxes from express companies, the previous history of which is traced and reviewed in that case. The statute was thus held, not only to repeal all general laws on that subject, but all local and special as well; that is, all the provisions of the charters of the hundreds of municipalities which authorized the levy of such taxes upon express companies. All municipalities were thereby deprived of the right to so tax or regulate express companies. Many of the municipalities, at the next session of the Legislature after the decision of this court in the Douglass Case, had their charters amended or re-enacted, so as to avoid the general statute, or to amend it in so far as that particular municipality was concerned, in order to allow them to again tax and regulate express companies. Among these was the city of Tuscaloosa. After its charter was thus amended, so as to allow it to levy a privilege tax on express companies, it proceeded to levy tax upon the Southern Express Company, which the company declined to pay, on the ground that the provision of the subsequent local statute was void, in that it was an attempt to amend the general statute without setting out so much thereof as was amended, as required by the Constitution, and in that it was in violation of section 2 of article 4 of the Constitution of 1875. The trial court upheld the local statute. On appeal to this court, the opinion being written by Justice Sharp, the judgment of the lower court was affirmed; but on an application for rehearing the majority of the court held that the local statute was unconstitutional and void, in that it was an attempt on the part of the Legislature to violate section 50 of article 4 of the Constitution of 1875--that is, that the local statute authorized a municipality to pass a law inconsistent with the general law of the state.

These statutes, the general and the various local statutes, as to taxing express companies, and these two decisions, above referred to, no doubt led to, or caused, the adoption of section 221 of the Constitution of 1901, which prohibits the Legislature from making the payment of one privilege or license tax in lieu of all other privilege and license taxes. This constitutional provision no doubt called forth the statute of 1903 (Acts 1903, p. 189). It, as will be seen, attempts to deal with the whole subject of privilege and license taxes against express companies. It not only authorized, but fixed and graded the amount of the taxes for all municipalities, as well as that part of the state tax. Whether that part of this statute which provides that the taxes fixed by it shall be in lieu of all other taxes, except an ad valorem tax, on the tangible and intangible property of express companies, is valid or not, it is not now necessary for us to decide.

This statute, as it is now written, was adopted as a part of the Code on the 27th day of July, 1907 (see act adopting Code, preliminary matter in volume 1, Code 1907). This Code went into effect on the 1st day of May, 1908. Consequently the act of 1903, unless otherwise repealed, remained the law from the date of its passage till the Code went into operation. So far as this case is concerned, the two provisions, the Code and original statute, are the same. The original manuscript prepared by the code commissioner for the Code of 1907, contained no new Municipal Code law other than the statutes and Code provisions then existing; but, in accordance with the act under which this Code or manuscript was prepared by the commissioner, he was required to make a report to the Governor of his work, and to file his report and his manuscript for the new Code with the Governor 90 days before the Legislature of 1907 convened. This act further required that this report should show the changes made, or suggested, in the Code and statutory law by the manuscript, and that the commissioner should draft certain bills which he deemed proper to complete or perfect the Code law proposed by him, which he did not deem proper to insert in the manuscript, and to recommend to the Governor the passage of such bills as were thus drafted and proposed by him. Among the great number of bills so drafted and proposed by the commissioner was a Municipal Code bill, which was practically the one known as the "Walker Bill," which passed the House at the session of 1903, but which for some reason failed of passage in the Senate.

The Legislature, at its session of 1907, did not adopt or enact the bill proposed by the commissioner; but prior to the recess of that session it passed a great number of general bills relating to municipalities, some of which were practically certain provisions of the Walker bill; but none of them attempted a codification or re-enactment of the whole of the law relating to municipalities. Before recess, however, the Legislature appointed a special committee to sit during the recess and to prepare and draft a general law to provide for the organization of municipalities, the government and control thereof, and to prescribe their rights, powers, and duties. This was done by the committee, which reported back to the Legislature, after recess, a general bill on this subject known as the "Municipal Code Bill." It provided, as was intended, a complete system of laws for the government and control of all municipalities. It intended a uniform system of laws for the government of all municipalities. Prior to this time each municipality was almost exclusively provided for by a special statute called its "charter," no two of which were alike in all respects; hence the municipal law of the state was different in every city and in nearly every town. A few of the smaller towns were organized under a general statute which provided therefor, but only very few. There were also a few general statutes made applicable to all municipalities, but very few. Every city had its charter, and the charter was its code of laws.

This bill, as reported by this special joint committee, known as the "Municipal Code Committee," with some amendments, passed the Legislature and was approved on the 13th day of August, 1907, 17 days after the Code of Alabama was adopted. So the Municipal Code never became a part of the Code of Alabama. While, under an act passed thereafter which provided for the publishing and printing of the new Code of Alabama, it was provided that all general laws of a permanent nature passed by that session of the Legislature after the 9th day of July, 1907, should be divided into sections, headlined and numbered, and published and printed as a part of the printed copies of the Code of Alabama, this was only for convenience, so that all the general laws might be included in the three printed volumes of the Code. The Municipal Code bill was one of the numerous and copious laws which had to be so published and printed with the Code of Alabama. It forms 396 sections of the printed volumes of the Code, numbered from 1046 to 1442.

Most all of the laws passed at the general session of the Legislature of 1907, prior to recess, were practically, if not literally, inserted in the Municipal Code bill. If not so substituted and thus re-enacted, they were clearly repealed by the Municipal Code act, and hence they were omitted from the printed copy of the Code; otherwise there would have been printed in the Code two separate laws relating to nearly every subject of municipal law. Among these laws thus omitted from the printed copies of the Code, though it is in the Code as adopted, is the act of March 6, 1907, authorizing municipalities to levy and collect privilege and franchise taxes on all trades, businesses, avocations, etc. This entire act was clearly and certainly superseded by section 97 of the Municipal Code bill, which appears as section 1339 of the printed Code of Alabama. While there are some differences in the two provisions, they are practically the same. One difference necessary to note is that the Municipal Code provision expressly provides that the...