Foshee v. State

• Decision Date: 01 August 1916
• Docket Number: 3 Div. 256
• Citation: 15 Ala.App. 113,72 So. 685
• Parties: FOSHEE v. STATE.
• Court: Alabama Court of Appeals

72 So. 685

15 Ala.App. 113

FOSHEE v. STATE.

3 Div. 256

Court of Appeals of Alabama

August 1, 1916

Rehearing Denied Sept. 7, 1916

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Proceeding by the State against W.E. Foshee. From a judgment, W.E Foshee appeals. Affirmed.

William L. Martin, Atty. Gen., and Lawrence E. Brown, Asst. Atty Gen., for the State.

PELHAM P.J.

This case was originally tried in a justice of the peace court where judgment was rendered against the defendant. An appeal was taken to the circuit court, where, after a trial de novo a judgment was rendered against the defendant, from which this appeal is prosecuted. The amount primarily involved is small ($7.50); but the case presents a matter of considerable interest and importance, in that the determination of the proposition presented involves the question as to whether or not the purchaser of an automobile, upon which the registration or license tax has been paid for the current year by the party from whom he has purchased the car, can be legally required to pay a registration or license fee for operating the car for that year.

The case was tried on an agreed statement of facts, and, confessedly, the sole question sought to be determined (and it is fairly presented by this record for review) is whether or not, when an automobile is being operated by its owner in this state and the ownership changes, it is a legal requisite that the purchaser, or new owner, should pay a license tax for operating the car for the current year, when the party from whom the automobile was purchased had paid a license tax on the car for that year. Under the motor vehicle law approved April 22, 1911 (Acts 1911, p. 634 et seq.), it may have been the legislative intent that the ownership of automobiles might pass, or be transferred, from one owner to another without the new owner being required to pay the registration or license tax for the period it had been paid by the previous owner. This is fairly inferable from section 8 of the act. Acts 1911, p. 637. These provisions, however, as to the change of ownership are omitted from the law now in force, governing the subject, and applicable to the case in hand, seeking to recover an automobile license tax under the provisions of the general license law approved September 14, 1915. Acts 1915, p. 489 et seq. The act of 1915 contains a repealing clause (section 22, p. 533), and was manifestly intended by the Legislature to restate and cover the entire subject of registration and licensing of automobiles, and repeals the provisions of the former statute (1911) relating to that subject. Isbell v. Shelby County, 10 Ala.App. 639, 65 So. 706; Gibson v. Mabry, 145 Ala. 112, 40 So. 297; Edson v. State, 134 Ala. 50, 32 So. 308; 3 Brickell's Digest, p. 750, § 49.

Courts in other jurisdictions seem to have generally placed a construction on statutes, providing for an automobile registration fee, holding it not to be a property tax, but a privilege tax, levied in the exercise of the police power to control and regulate travel on the public highways. Commonwealth, etc., v. Boyd, 188 Mass. 79, 74 N.E. 255, 108 Am.St.Rep. 464; Jackson v. Neff, 64 Fla. 326, 60 So. 350; Vernor v. Secretary of State, 179 Mich. 157, 146 N.W. 338, Ann.Cas.1915D, 128.

In this state it has been expressly held by this court, in considering the motor vehicle law of 1911, that the state has the right, in the exercise of its police power, to regulate the use of motor vehicles upon the public highways and impose a license fee or tax for this purpose. This is the effect of the holding in Bozeman v. State, 7 Ala.App. 151, 61 So. 604, which opinion in "all things" was affirmed by the Supreme Court, in reviewing that case on certiorari. Ex parte Bozeman, 183 Ala. 91, 103, 63 So. 201.

It seems clear that the Legislature intended to impose a privilege license on the operation of automobiles (Bozeman Case, supra) rather than a tax on the vehicle itself. This is also made manifest from the fact that, had the Legislature intended to tax the motor vehicle, it would, in all reasonable probability, have placed a...