City of Montgomery v. American Ry. Express Co.

• Decision Date: 30 May 1929
• Docket Number: 3 Div. 893.
• Citation: 122 So. 639,219 Ala. 476
• Parties: CITY OF MONTGOMERY v. AMERICAN RY. EXPRESS CO.
• Court: Alabama Supreme Court

122 So. 639

219 Ala. 476

CITY OF MONTGOMERY v. AMERICAN RY. EXPRESS CO.

3 Div. 893.

Supreme Court of Alabama

May 30, 1929

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action to recover license tax by the City of Montgomery against the American Railway Express Company. Judgment for defendant on plea of tender, and plaintiff appeals. Affirmed.

Goodwyn & Goodwyn and C. P. McIntyre, all of Montgomery, for appellant.

George W. Jones and Eugene Ballard, both of Montgomery, and Robert C. Alston, of Atlanta, Ga., for appellee.

SAYRE J.

Section 2158 of the Code of 1923 provides as follows: "The maximum amount of privilege or license tax which the several municipalities within this State may annually assess and collect of persons, firms or corporations engaged in the express business within the limits of such municipalities for the privilege of doing intrastate business *** is fixed as follows: *** in municipalities having a population of thirty thousand and over, five hundred dollars per annum. *** Where more than one express company does business in any municipality, the privilege or license tax as hereinabove provided for shall be equally divided between such two or more express companies, so that the aggregate collected by such municipalities from such two or more express companies shall not exceed such maximum in any one year."

The defendant, American Railway Express Company, and the Southeastern Express Company each maintains an office and does an intrastate express business in the city of Montgomery. The municipal taxing authorities have assessed a tax of $500 against each of the companies. Defendant contends that the maximum limit of the tax assessable against it is $250, and tenders that amount. In the trial court it was ruled that the defendant had the right of the controversy and the city has appealed to this court for an authoritative construction of the quoted and related statutes.

Sections 11 and 12 of the Code, supposed to be influential in the premises, are as follows:

"Section 11. Laws continued in force and laws repealed. This Code shall not affect any existing right, remedy, or defense nor shall it affect any prosecution now commenced, or which shall be hereafter commenced, for any offense already committed. As to all such cases the laws in force at the adoption of this Code shall continue in force. But this section does not apply to changes in forms of remedy or defense, to rules of evidence, nor to provisions authorizing amendments of process, proceedings or pleadings in civil causes. Local, private, or special statutes, and those public laws not of a general and permanent nature, and those which now relate to or can apply to but one county, one municipality, or one particular district, circuit or territory, and those relating to the swamp and overflowed lands, drainage districts, stump, and land-clearing districts, and those relating to the public debt, and those relating to institutions of learning, and those relating to the jurisdiction and practice of courts in any division, circuit, county, or other territory less than the entire state, are not repealed by this Code. But subject to the foregoing provisions and the following section, or as may be otherwise provided in this Code, all statutes of a public, general,

...