Ex parte Jones

• Decision Date: 09 October 1924
• Docket Number: 4 Div. 158
• Citation: 102 So. 234,212 Ala. 259
• Parties: Ex parte JONES.
• Court: Alabama Supreme Court

102 So. 234

212 Ala. 259

Ex parte JONES.

4 Div. 158

Supreme Court of Alabama

October 9, 1924

Rehearing Denied Dec. 4, 1924

Certiorari to Court of Appeals.

Petition of E.M. Jones for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Jones v. Lee, Judge, 102 So. 233. Writ awarded; reversed and remanded.

Chauncey Sparks, of Eufaula, for appellant.

Harwell G. Davis, Atty. Gen., and A.A. Evans, Asst. Atty. Gen., for appellee.

GARDNER J.

E.M Jones applied to the probate judge of Barbour county for a state and county license to sell cigarettes in the city of Eufaula, and tendered therefor a sum sufficient if the federal census of 1920 as to the population of Eufaula was to govern. See section 361, schedule 25, General Revenue Act of 1919 (Gen.Acts 1919, p. 404). Subsequent to the publication of the federal census, but prior to October 1, 1923, the city of Eufaula had taken the census under the provisions of the Acts of 1919, p. 465, which will, for convenience, be referred to as the municipal census. According to this census, the population of Eufaula was in excess of 5,000 and less than 7,000. The General Revenue Act was approved September 15, 1919, and the above-cited act providing for a municipal census was approved two days subsequent thereto. The probate judge was of the opinion that the municipal census should control, and denied the license. Jones made application for a mandamus, which was refused, and his petition therefor dismissed. From the judgment dismissing the petition he prosecuted an appeal to the Court of Appeals resulting in an affirmance of the judgment, and this petition for certiorari is presented to review the ruling and opinion of the Court of Appeals affirming this judgment.

The sole question presented for determination is whether the federal census shall control in determining the amount to be tendered for license in the instant case, or the municipal census.

The concluding sentence of section 377 of the General Revenue Act 1919, reads as follows:

"In all cases where the amount of license is rated according to the population of the town, city, or county, the population of such town, city or county as fixed by the last preceding United States census shall govern."

Section 425 of this act provides that--

"Except as otherwise provided in this act, all the provisions of this act shall go into effect on the first day of October, 1919."

As previously stated, this act was approved September 15, 1919 and under the provisions thereof, governed by the federal census, petitioner had tendered the proper amount.

The ruling of the Court of Appeals is based, however, upon the fact that two days subsequent to the approval of the General Revenue Act there was approved an act ratifying and validating the census of cities and towns of 7,000 inhabitants or less where the same had been taken as provided by the Code. This act provided that the census so taken by the city authorities purporting to be a true and correct enumeration of the inhabitants residing therein, when filed with the secretary of state, is ratified, confirmed, and validated, and "shall for all purposes govern," and be taken as the true and correct census for all such cities and towns in the state. This act further provides that--

"The form of government of such cities and towns shall be governed and controlled by such census when the same is so taken and a report thereof is filed in accordance with the provisions of this act."

The Court of Appeals reached the conclusion that the language of this act is broad and comprehensive to the effect that such census shall "for all purposes govern," and that therefore there is a conflict between this act and the General Revenue Act referring to the federal census, and that the latter act must control.

The Municipal Census Act makes no reference whatever to the General Revenue Act, but contains a general repealing clause to the effect that "all laws and parts of laws in conflict herewith, be and the same are hereby repealed." Such a general clause, however, does not operate as a repeal of any of the provisions of the General Revenue Act, unless in conflict therewith. As said by this court in Ogbourne v. Ogbourne, 60 Ala. 616, "It is merely a legislative declaration of the necessary effect of the act, if the clause had not been inserted." If, therefore, there is a repeal, it is by implication, and it is well established that repeal by implication is never favored by the court. In Iverson v. State, 52 Ala. 170, the court said:

"The rule is well settled and universally acknowledged, that the repeal of a statute by implication is not favored; and that the courts will not construe a prior act to be repealed, unless the provisions of the subsequent act are

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