Ex parte Bozeman

• Decision Date: 30 June 1913
• Citation: 183 Ala. 91,63 So. 201
• Parties: Ex parte BOZEMAN.
• Court: Alabama Supreme Court

63 So. 201

183 Ala. 91

Ex parte BOZEMAN.

Supreme Court of Alabama

June 30, 1913

Petition by Robert H. Bozeman for certiorari to the Court of Appeals to review a judgment (61 So. 604) affirming a judgment of conviction. Certiorari denied.

McClellan and Mayfield, JJ., dissenting.

Arrington & Houghton, of Montgomery, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

This case involves the constitutionality of section 7 of what is known as the "Motor Vehicle Law" and which is as follows: "The following license tax or registration fee shall be charged on motor vehicles used for private use Seven and one-half dollars upon each motor vehicle having a rating of less than twenty horse power; $12.50 upon each motor vehicle having a rating of twenty horse power and less than thirty horse power; $17.50 for more than thirty and less than forty horse power; $20.00 upon each motor vehicle having a rating of forty horse power, or more; and such fee shall be based on the insurable horse power of the car. Twelve dollars and a half on each electric motor vehicle, and fifteen dollars on each motor vehicle propelled by steam. Three dollars on each motorcycle. The following license tax or registration fee shall be charged on motor vehicles used for hire: Upon each motor vehicle used for public hire in transporting passengers or freight $25.00. Each manufacturer or dealer in motor vehicles shall pay a license tax of $100.00. Each person, firm or corporation conducting a garage, or garages, shall pay a license tax of one hundred dollars, for each garage. Said several sums of money charged as a license tax herein shall be paid to the Secretary of State and forty per centum of the gross revenue derived from any incorporated city or town shall revert to the treasurer of the city or town in which the owner or licensee resides and forty per cent. of the gross revenue derived from any county outside of any incorporated city or town shall likewise revert to the treasurer of said county. The registration fee or license tax shall be in lieu of all other privilege licenses which the state, or any county or municipality thereof might impose, but nothing in this section shall be construed to prevent the collection of any ad valorem tax." Laws 1911, p. 636.

It is contended that said section violates section 221 of the Constitution and is therefore void. Section 221 of the Constitution is as follows: "The Legislature shall not enact any law which will permit any person, firm corporation, or association to pay a privilege, license, or other tax to the state of Alabama, and relieve him or it from the payment of all other privilege and license taxes in the state."

It is contended that said section of the "Motor Vehicle Law" is void because it permits the appellant, Bozeman to pay a license tax to the state of Alabama for the privilege of running his "motor vehicle" and prohibits cities, towns, and counties in the state from requiring a license tax from him for the privilege of running his "motor vehicle" in such cities, towns, or counties. In other words, says the appellant, the above section 7 of the "Motor Vehicle Law" permits persons, firms, corporations, and associations to pay a privilege or license tax to the state of Alabama and relieves them from the payment of any other privilege and license taxes in the state. It is therefore, according to the appellant's contention, violative of the above-quoted section 221 of the Constitution.

1. It is one of the cardinal rules governing the construction of statutes that, when the question as to whether a particular statute is or is not constitutional is reasonably in doubt, then the doubt should be resolved in favor of the constitutionality of the act. Lovejoy v. City of Montgomery (App.) 61 So. 597, present term; State ex rel. City of Mobile v. Board, etc., Commissioners, 61 So. 368, present term.

The reason for the above rule is that the Legislature which passed the act is presumed to have sat in judgment, while the act was before it upon the question as to whether the Legislature possessed the constitutional power to make such a law. That body having passed the act, the law presumes that the judgment of the Legislature was that the act was constitutional. This judgment of the Legislature, while not conclusive upon the courts, is entitled to, and under the above rule must receive, great weight at the hands of the courts. It is a solemn thing for a court to strike down a statute, and when it does so its reason therefor should be clear and strong and should lead to the irresistible conclusion that the act is invalid. The people of Alabama, when they adopted the present Constitution, gave forcible evidence of their recognition of and their acquiescence in this legal truism. Local legislation had, before the adoption of the present Constitution, been a menace to the security of healthful general laws; and, to emphasize their distaste to legislation of that character, the people expressly declared in section 105 of the Constitution that "no special, private or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by general law, or when the relief sought can be given by any court of this state; and the courts, and not the Legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court," etc. The italics in the quoted section 105 of the Constitution were placed there by the writer for the purpose of showing how emphatically the people, when they adopted the present Constitution, recognized the rule of construction to which we have above referred.

2. The purpose of the people when they adopted the above-quoted section 221 of the Constitution is, when read in the light of the legislative history of the state, plain and unmistakable. The Legislature had not been unaccustomed to pass acts which required of those who desired to carry on a particular character of business in the state for which a license tax might be lawfully required to pay a license tax for the state only and in which the state only participated. Cities and towns were thus frequently left without power to derive any revenue in the shape of license taxes from those to whom they were constantly furnishing municipal protection. It was this inequality which said section 221 of the Constitution was intended to prevent, and it seems that the act under consideration in no way defeats or comes in conflict with the purposes of said section. The act, it is true, levies only one privilege tax, but it equitably divides the tax so levied between the state and its towns, cities, and counties and thus carries into effect the true purpose of said section 221. If the tax was so distributed among the cities, towns, and counties as to clearly indicate the legislative purpose to defeat the will of the people as expressed by them in said section, then an entirely different question would be before us. Courts have with persistent frequency called attention to the fact that Constitutions are adopted for practical purposes and are entitled to reasonable and practical interpretations; and, when a statute meets the provisions of a Constitution which is thus interpreted, its constitutionality should always be upheld. Lovejoy v. City of Montgomery, supra.

We are not inclined to adopt the view that the act in question appears, on account of the manner in which the license fund is distributed, to be in conflict with the above constitutional provision. On the contrary, as already stated, it shows, on its face, an equitable distribution of the license tax between the state and its various political subdivisions, and carries, therefore, on its face a legislative effort to meet the requirements of said constitutional provision.

There is on file in this case, which will be published as a dissenting opinion, an opinion prepared by Mr. Justice MAYFIELD. If the Legislature in this act had, to quote the language of Mr. Justice MAYFIELD, given the "lion's share or the mouse's share" to the state or to its towns and cities and counties, then the act might be subject to criticism and its constitutionality might be called into serious consideration; but the apportionment of the license tax imposed by the act is equitable and just and for that reason the act is not subject to this criticism. In this connection it may be of service to call specific attention to section 2086 of the Code of 1907. There the Legislature fixed the privilege tax to be paid to the state at $4,000, and in the same identical act fixed the exact amount which might be levied upon express companies, by cities and towns, for the privilege of doing business in such cities and towns. The amount of the tax which each city and town might levy for the stated purpose was fixed with as much definiteness as if each city and town in the state had been named in the act and the amount which each town could so levy had been definitely fixed at a named sum in the act. The act was, however, held by this court to be a valid exercise of legislative power. City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159.

The reasoning of this court in the opinion which was handed down in the above case (and the opinion was unanimously concurred in by all of the then members of this court) it seems to us completely answers all arguments which can be advanced against the constitutionality of the act now under consideration. The only material difference between the section of the Code which was held to be constitutional in City of Birmingham v. Southern Express Company, supra, and the act now under consideration is,...