Ex parte Smith

Decision Date06 November 1924
Docket Number2 Div. 853
PartiesEx parte SMITH. v. STATE. SMITH
CourtAlabama Supreme Court

Rehearing Denied Dec. 4, 1924

Certiorari to Court of Appeals.

Petition of Robert Smith for certiorari to the Court of Appeals, to review and revise the judgment and decision there rendered in the case of Robert Smith v. 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 amended, as to section 13 thereof, by Acts 1923, p. 61. The authority is given courts of county commissioners, boards of revenue, and other governing bodies of the several counties, for the purpose of maintaining the public roads, bridges, and ferries, to impose upon the "owners of all vehicles," except those exempted "a license tax," and such courts, boards, or other governing bodies are given the authority to "classify such vehicles, in determining the amount of tax to be levied on each class."

The indictment was under the act of 1915 and section 13 thereof which also gave the authority to impose upon the owners of vehicles, which are used upon the public roads of the county such license tax for each class of vehicles as may be deemed advisable by such courts or boards. The amendment was, no doubt, to clear the statute from the exemption declared to exist as to private automobiles used by the owner for himself and family, and not for commercial purposes. Hill v Moody, 207 Ala. 325, 93 So. 422; Gen.Acts 1915, p. 489; Gen.Acts 1915, p. 573.

The act and ordinance were enacted in the exercise of the police power of government. The courts concede a wide discretion to the Legislature, relative to grounds of classification. If a statute so classifying is reasonable in its administration, and not inconsistent with the general principles of the law of the land--especially those having relation to the liberty of the citizens and the rights of private property--it will not be disturbed. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, 227; Henderson v. Mayor, 92 U.S. 259, 23 L.Ed. 543; Chy Lung v. Freeman, 92 U.S. 275, 23 L.Ed. 550; Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145. Hence the lawmakers are free to create classes upon whom the taxing powers may be laid, provided the classification for such purpose (1) bears a reasonable relation to the subject of the legislation, and (2) is uniform in its operation or administration; that is, that subjects of the same class are made to bear equally and uniformly the burden imposed. As tests in the determination of the operation of a classification contained in a statute or ordinance, the class must: (a) Be germane to the purpose of the law; and (b) bring within its influence all who are under the same conditions, and be applied equally to each member of the class, (c) must not be based on existing circumstances only, or so constituted and narrowed as to preclude proper additions to the numbers included within the class; and (d) must be based upon substantial distinctions which make one class different from another. 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. Goldstein, 207 Ala. 569, 93 So. 308. See, also, Maercker v. City of Milwaukee, 151 Wis. 324, 139 N.W. 199, L.R.A.1915F, 1196, Ann.Cas.1914B, 199; Johnson v. St. Paul, etc., Co., 43 Minn. 222, 45 N.W. 156, 8 L.R.A. 419; North Carolina v. Williams, 158 N.C. 610, 73 S.E. 1000, 40 L.R.A. (N.S.) 279, and notes; Cooley's Const. Lim. (6th Ed.) p. 479 et seq.

The ordinance of the court of county commissioners of Greene county is set out in the indictment. It is as follows:

"It is therefore ordered by the court of county commissioners of Greene county, Alabama that, for the purpose of maintaining the public roads, bridges, and ferries of the county, the following license taxes be, and the same hereby are, imposed upon the owners of the following class of vehicles which are used in hauling, transporting, or moving staves, stave bolts, or billets, stave timber, spokes, spoke billets, or spoke timber, saw logs, or any other character of logs or timber or lumber upon the public roads of Greene county, Alabama, to wit:
"For the year 1920 and annually thereafter until further ordered by the court:
"For each wagon drawn by not more than two animals, $7.50.
"For each wagon drawn by more than two and not more than three animals, $10.
"For each wagon drawn by more than three and not more than four animals, $15.
"For each traction engine, or steam engine of any kind (not including automobiles or motor cars), used in drawing or pulling one or more wagons, cars, vehicles, or trailers, $25.
For each wagon, car, or trailer, or other vehicle drawn by or pulled by an automobile, motor car, motor truck, traction engine, or steam engine of any kind, $15.
"It is further ordered by the court that the owner of each of said vehicles shall pay to the judge of probate of Greene county, Alabama, the license tax due by him hereunder, and procure a license for the use of such vehicles, upon the public roads of said county before the same is used for any of said purposes, upon the public roads of Greene county, Alabama, which license shall authorize the owner of such vehicle to use the same for hauling, transporting, or moving staves, stave bolts, or billets, stave timber, spokes, spoke bolts, or billets, or spoke timber, saw logs, or any kind or character of logs or timber or lumber, upon the public roads of Greene county, Alabama, during the year the same is issued, and not otherwise."

That ordinance is within the decision of this court rendered in Kennamer v. State, 150 Ala. 74, 43 So. 482. It was there declared that:

"It is inherent in the power granted to the court [commissioners' court] that it should determine, in keeping with the object and purpose of the statutory provision, what wagons hauling what character of the material mention should be licensable. The weight of the burden borne by the vehicle was the consideration giving rise to the conferring of the power to license and the order of the court is clearly within the grant." (Italics supplied.)

The expression in the Kennamer Case, "wagons hauling what character of the material mentioned" (italics supplied), meant, under the facts, "logs," "lumber," "timber," other than "firewood," and was made the basis of classification in said ordinance; that is, the contents of the wagon, the material hauled, and not the unusual burden being imposed, or commerce or business conducted, upon and in the public highway. The general observation should be made that the basis of a proper classification may be found in an extraordinary use of a public highway--such as the hauling thereon of offal or refuse offensive to the senses or tending to affect the health of the citizen, the conduct of circus parades, the prosecution of private business, as hauling for hire peddlers, jitneys, busses, automobiles for hire, or the imposition of unusual burdens upon public roads and bridges--and in the substantial and differing character of the vehicles employed as to weight, horse power, whether gas or electric, trucks or automobiles, and the like. So, also, the basis for a classification for the purpose of raising revenue for road purposes may be found in a general vehicle tax to the exclusion of other passengers traversing the public highway. However, an administration of a municipal ordinance which would tax one vehicle and exempt another, by reason only of the character of commodity hauled, is a tax imposed on the mere hauling of the particular commodity, and the imposition of such a tax is arbitrary and unreasonable.

The Court of Appeals rested its decision in Conecuh County v. Simmons, 19 Ala.App. 65, 95 So. 488, and in this case, upon Kennamer v. State, 150 Ala. 74, 43 So. 482. It should be said that the cases of Kennamer v. State, supra, and Hill v. Moody, 207 Ala. 325, 93 So. 422, and other cases having application recognize that, under due legislative authority, counties may raise revenues for road improvement through the direct method of license fees which are reasonable and uniform, imposed upon vehicles using the public highways (Adams, Tax Col., v. Southern Ry Co., 167 Ala. 383, 52 So. 439); may prescribe proper rules, regulations, or conditions for the use, or permit for the conduct, of commercial or business enterprises on such highway (Mills v. Comm. Court, 204 Ala. 40, 85 So. 564; McLendon v. Boyles Transit Co.,

210 Ala. 529, 98 So. 581; Giglio v. Barrett, 207 Ala. 278, 92 So. 668; Harris v. Barrett, 206 Ala. 263, 89 So. 717; City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117); and may exercise judgment and discretion in the building, protection, improvement, maintenance, etc., of such public thoroughfare (O'Rear v. Sartain, 193 Ala. 275, 69 So. 554, Ann.Cas.1918B, 593; Board of Revenue v. Merrill, 193 Ala. 521, 68 So. 971; Ex parte City of Birmingham, 201 Ala. 641, 79 So. 113). Such exercise of the police power of government is always subject to the guaranties contained in federal and state Constitutions. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Board of Commissioners of Mobile v. Orr, 181 Ala. 308, 61 So. 920, 45 L.R.A. (N.S.) 575.

It is the judgment of the writer that, under the facts of the Kennamer Case, supra,...

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