Conecuh County v. Simmons

• Decision Date: 24 October 1922
• Docket Number: 3 Div. 418.
• Citation: 19 Ala.App. 65,95 So. 488
• Parties: CONECUH COUNTY v. SIMMONS.
• Court: Alabama Court of Appeals

95 So. 488

19 Ala.App. 65

CONECUH COUNTY v. SIMMONS.

3 Div. 418.

Court of Appeals of Alabama

October 24, 1922

Rehearing Denied Dec. 19, 1922.

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Action by the county of Conecuh against G. R. Simmons. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

E. C Page, of Evergreen, and Powell & Hamilton, of Greenville, for appellant.

J. S Stearns and Jones & Kelly, all of Evergreen, and James J Mayfield, of Montgomery, for appellee.

SAMFORD, J.

Under authority of the Goode Law approved September 22, 1915 (Acts 1915, p. 573 et seq.), as approved and construed in Windham v. State, 16 Ala. App. 383, 77 So. 963, and Mills v. Conecuh County, 204 Ala. 40, 85 So. 564 the court of county commissioners of Conecuh county by ordinance regularly adopted were authorized to assess a privilege or license tax on automobile trucks used for commercial purposes, provided such license was levied with due regard to classification etc., which will be adverted to later in this opinion. And we hold that the appellee's trucks, under the facts in this case, were used for commercial purposes, within the meaning of the act of the Legislature of 1915 and the decision in the Mills Case supra.

The next question is not without difficulty. The taxing power of the state rests with the Legislature, subject only to such restrictions as may have been placed upon it by the Constitution. For certain purposes this power may be granted to county and municipal corporations, and we have held that in 1915 Acts, supra, the Legislature by a valid enactment did place this power in the commissioners' court of Conecuh county, and that acting under this power the commissioners' court of Conecuh county levied a license on automobile trucks, covering the two trucks of appellee. The same power that granted the power can by valid enactment take it away or withhold it, and when such is the case the act or ordinance of the county ceases to be of any force or effect and is superseded by the act of the superior power. By the act of the Legislature of 1915, approved September 14, 1915 (Acts 1915, p. 489 et seq.), sections 6, 7, 8, and 9, levying a license or privilege taxes on automobile vehicles, by section 2, p. 527, made a levy for the counties, and with the law so written the Supreme Court, in Mills v. Conecuh County, 204 Ala. 40, 85 So. 564, construed the act approved September 22, 1915 (Acts 1915, p. 573), as giving to the court of county commissioners the power to levy the additional tax, and with this construction the Legislature of 1919, by Acts 1919, p. 282, sections 361 and 362, re-enacted substantially the same sections which were in existence in the 1915 acts and construed by the Mills Case, and while the levy by the county of the tax sued for in this case is double taxation, we know of no constitutional inhibition against this character of taxation, and we see no escape from the decision of the Supreme Court in the Mills Case, supra.

The power of levying privilege taxes still remains with the counties as fixed by the Goode Law and construed in Mills v. Conecuh County, 204 Ala. 40, 85 So. 564; Windham v. State, 16 Ala. App. 383, 77 So. 963; Id., 202 Ala. 697, 79 So. 877; and Hill v. Moody (Ala. Sup.) 93 So. 422. Nor is the case of Kennamer v. State, 150 Ala. 74, 43 So. 482, in conflict with the foregoing. In the Kennamer Case the Legislature had granted to the commissioners' court of Jackson county power "to require persons hauling logs, lumber, or other timber," etc., "over the public roads of the county or any specified part thereof to secure a license from the judge of probate; and to prescribe a price to be paid for such license and each wagon so engaged." The license was fixed and the classification made according to horse power, the court, after holding that the Legislature might grant this power, in order that those using the road might be required to pay a fair share of the expense of a road kept for the benefit of the users, the opinion proceeds to say:

"The sufficiency and definiteness of the order is free from criticism, since the amount of the license tax is graduated according to the character of the vehicle, as indicated by its being a two or more horse wagon. Clearly the measure of the draft is the better determined under such a standard."

In the Goode Law (Acts 1915, p. 573, § 13) the court of county commissioners are only given authority to levy license taxes for each class of vehicles, and that act does not confer authority to fix a license for hauling along the public road any particular article of commerce. Hence the county ordinance fixing a license tax on each truck of certain tonnage with pneumatic tires hauling logs, blocks, etc., is a classification according to tonnage within the class designated, and not a license for the privilege of hauling logs, blocks, etc., and is authorized under the...