Ex parte City of Birmingham
Decision Date | 23 March 1918 |
Docket Number | 6 Div. 768 |
Citation | 201 Ala. 641,79 So. 113 |
Parties | Ex parte CITY OF BIRMINGHAM. v. CITY OF BIRMINGHAM. BEST |
Court | Alabama Supreme Court |
Rehearing Denied May 9, 1918
Certiorari to Court of Appeals.
Frank F. Best was convicted of violating a municipal ordinance, and appealed to the Court of Appeals where conviction was reversed and cause remanded (78 So. 100). The City petitioned for certiorari. Writ granted, and judgment of the Court of Appeals reversed, and cause remanded.
M.M Ullman and W.A. Jenkins, both of Birmingham, for appellant.
Horace C. Wilkinson, of Birmingham, for appellee.
The sections of the ordinance here involved are those numbered 2 and 4, and they read as follows:
The Court of Appeals thus states the question presented to it on appeal:
"Has the city of Birmingham the authority to provide by ordinance for the imposition of a fine on a person who is subject to street tax, and fails to pay it or discharge it in labor?"
In a full opinion, after citing and reviewing many authorities, the Court of Appeals answers this question in the negative, declaring the ordinance void, and reversing the judgment of conviction of the criminal court, and renders a judgment discharging the accused. We are of the opinion that the Court of Appeals erred in the rendition of that judgment, and that the judgment of conviction should be affirmed; there being no question other than the validity of the ordinance.
The Court of Appeals holds that section 1336 of the Code of Alabama repealed that part of the charter of the city of Birmingham which authorized it to pass the ordinance in question, and that this Code provision does not authorize the city to make or enforce the ordinance in question. It also holds that neither section 1251 of the Code, nor section 6 of the Omnibus Bill (Acts 1915, pp. 296, 297), authorizes section 4 of the ordinance. The Court of Appeals fell into error in each of these holdings. Section 1336 of the Code of Alabama did not deprive the city of Birmingham of the power to pass the ordinance in question. The ordinance, on the contrary, is in part expressly authorized by the section of the Code. It is therefore not necessary to decide whether or not the section of the Code repealed the provision of the city's charter, which would have authorized the ordinance.
It is true, as pointed out by the Court of Appeals in its opinion, that section 1336 of the Code does not expressly authorize the city to require its inhabitants to work on the streets, nor expressly provide that the city may accept labor in lieu of the $5 in money which is expressly authorized to be assessed and collected. It does not, however, deny the right or power to accept the labor in lieu of the payment in money, nor does it deny the city the right or power by appropriate ordinance to enforce the payment of the $5, by fine or penalty, in case the inhabitant who is liable fails or refuses to either pay the money or perform the labor as is provided in the ordinance. It is true, as the Court of Appeals says, that section 1336 of the Code does not provide for the enforcement of the payment of the $5 called a tax, either by fine or penalty, by work on the streets, or otherwise. It was not the object or purpose of this section of the Code to authorize an ordinance to enforce the payment of the $5. It only purports to authorize an ordinance to make the levy, or to fix the liability to pay the $5. It does authorize section 2 of the ordinance, above set forth; but it does not purport to authorize section 4 of the ordinance.
Section 1251 of the Code, or section 6 of the Omnibus Bill (Acts 1915, p. 296), does authorize section 4 of the ordinance. Hence the city did have express statutory authority to pass an ordinance levying the $5 upon inhabitants between the ages of 21 and 45 years, and to enforce obedience thereto by the fine and punishment therein specified. Surely the ordinance is not rendered void merely because it provides that the payment of the $5, at the option of the inhabitant, may be discharged by labor on the streets. The option is in favor of the inhabitant, and not of the city. The ordinance does not attempt to compel the inhabitant to work on the street, rather than to pay the $5; but he is given the option to pay the $5 by work if he chooses so to do. It is only upon his failure or refusal to do either that the ordinance provides for a fine and punishment.
The Court of Appeals is also in error in holding that there is no authority in this state for a municipality to require its inhabitants within proper ages to work or maintain the streets of the city. It is true that the statutes do not provide that the inhabitants of the municipality may be required, in the first instance, to work the streets; but they provide that the inhabitants may discharge this public duty by the payment of $5, and if he fails or refuses to either pay the $5, or work on the streets in lieu thereof, he may be subjected to fine or other punishment by ordinance like the one in question.
The Court of Appeals treats the question as if the $5 mentioned in the statute and ordinance was a mere tax and nothing more, and holds that without express statutory authority its payment could not be compelled or coerced, except by an ordinary civil suit. If it is a mere tax, this is true; but it is not a tax in this sense, although it is called a "tax" in the statute, in the ordinance, and in common parlance. As has been often pointed out by this court, it is not a tax in this sense, though it is called a "street tax" in the statutes and ordinances. The statute itself, and all similar ones, would be unconstitutional if the payment of the $5 could be justified only as a mere tax. It could not, of course, be justified as a poll tax, because the Constitution limits the amount of the poll tax to $1.50, and requires the proceeds thereof to be paid into the public school fund. Const.1901, §§ 194, 259. It is not a property tax, and cannot be justified as such. It does not purport to be a franchise or license tax. It is, in law, a commutation of the public and personal duty to work or maintain the public roads, streets, or highways. This was pointed out by this court, at an early date, in the case of Lewin v. State, 77 Ala. 45, as to the phrase "road tax," and what was there said as to that expression is here exactly apt to the construction of "street tax":
In later cases the same construction is applied, notably in Whitt v. City of Gadsden, 160 Ala. 271, 272, 49 So. 682, where it is said:
...
To continue reading
Request your trial-
Republic Iron & Steel Co. v. State
...In addition, as a tax measure it will be construed against the state. State v. Roden Coal Co., 197 Ala. 417, 73 So. 5; Ex parte Birmingham, 201 Ala. 641, 79 So. 113; v. Malley, 249 U.S. 223, 39 Sup.Ct. 270, 63 L.Ed. 573, 2 A.L.R. 1601; Gould v. Gould, 245 U.S. 151, 38 Sup.Ct. 53, 62 L.Ed. 2......
-
State v. Goldstein
...Chem. & Oil Co. v. Troy, 201 Ala. 89, 77 So. 383, L. R. A. 1918C, 522; Mobile v. Yuille, 3 Ala. 137, 36 Am. Dec. 441; Ex parte City of Birmingham, 201 Ala. 641, 79 So. 113; City of Troy v. Western U. T. Co., 164 Ala. 486, 51 So. 523, 27 L. R. A. (N. S.) 627. Statutes and ordinances-other th......
-
Ex parte Smith
......State (2 Div. 296) 101. So. 910. Writ denied. . . Sayre. and Thomas, JJ., dissenting. . . R.B. Evins, of Birmingham, for petitioner. . . Harwell. G. Davis, Atty Gen., opposed. . . THOMAS,. J. . . Acts. 1915, p. 573, was ... S. & N.A.R. Co. v. Morris, 65 Ala. 193; Randolph. v. Builders' & Painters' Sup. Co., 106 Ala. 501,. 17 So. 727; City of Cullman v. Arndt, 125 Ala. 581,. 28 So. 70; Board of Commissioners of Mobile v. Orr,. 181 Ala. 308, 61 So. 920, 45 L.R.A. (N.S.) 575; State v. ......
-
City of Birmingham v. Jones
...... within the exceptions of the statute, section 12, Code of. 1923. In re Fred Fite (Ala. Sup.) 152 So. 246; City. of Birmingham v. Doster-Northingham Drug Co., supra;. Grambs v. City of Birmingham, 202 Ala. 490, 80 So. 874; Ex parte City of Birmingham [Best v. City of. Birmingham], 201 Ala. 641, 79 So. 113; Milner v. City of Birmingham, 201 Ala. 689, 79 So. 261; Fitts. v. Commission of City of Birmingham, 224 Ala. 600, 141. So. 354; Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14; McDougall v. City of Birmingham, ......
-
Overview of State and Local Government Powers During the Covid-19 Pandemic
...Id.21. Id.22. Id.23. See New Decatur v. Berry, 7 So. 838 (Ala. 1890); Best v. Birmingham, 79 So. 113 (Ala. 1918).24. City of Mobile v. Moog, 53 Ala. 561 (1875) (quoting JOHN FORREST DILLON, THE LAW OF MUNICIPAL CORPORATIONS § 55 (2d. ed. 1873).25. Best, 79 So. at 116.26. AL. CONST. art. IV,......
-
Alabama Municipal Law 101 (a Primer on the Basics)
...whether a city or town is authorized to exercise a particular power. See New Decatur v. Berry, 7 So. 838 (Ala. 1890); Best v. Birmingham, 79 So. 113 (Ala. 1918). In Best v. Birmingham, the Supreme Court of Alabama held that the Alabama Court of Appeals erred in holding that municipal corpor......