Kennamer v. State

• Decision Date: 02 April 1907
• Parties: KENNAMER v. STATE.
• Court: Alabama Supreme Court

43 So. 482

150 Ala. 74

KENNAMER v. STATE.

Supreme Court of Alabama

April 2, 1907

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Campbell Kennamer was convicted of a violation of the road law of Jackson county, and appeals. Affirmed.

Street & Isbell and John A. Lusk, for appellant.

Alexander M. Garber, Atty. Gen., Virgil Bouldin, and John B. Tallev for the State.

McCLELLAN J.

The appellant was convicted of a violation of the road law of Jackson county, in that he hauled lumber, etc., over a public pike road therein without having a license therefor. There were numerous grounds of demurrer interposed to the indictment, all of which were overruled.

In Acts 1903, pp. 682-689, will be found the act under which this indictment is preferred. Its caption is: "To provide for the maintenance, improvement and protection of the public roads of Jackson county, Alabama, and to provide for the levy of a special road tax. * * *" In and by section 21 thereof it is provided that "the commissioners' court of Jackson county shall have power at any time from the passage of this act: * * * (5) To require persons hauling logs, lumber, or other timber of whatsoever description over the public roads of the county of any specified part thereof to secure a license from the judge of probate; and to prescribe a price to be paid for such license on each wagon so engaged." It then requires that all money collected in this and preceding sections shall be a part of the special road fund, etc. Under this authority the commissioners' court ordered that, "beginning on the 1st day of April each person, firm, or corporation, for hauling logs, lumber or other timber of whatsoever description, other than firewood, over the pike roads of this county, shall first secure a license from the judge of probate of said county for such privilege, and for such license, for each wagon so used such person, firm, or corporation shall pay * * * the amount stipulated in the following table or schedule of license, to wit: Two horse or mule wagon, $2.00 per month; three or four horse or mule wagon, $5.00 per month. For any wagon drawn by a greater or less number of horses prices shall be fixed on the same ratio as above." It was admitted that the defendant hauled lumber in a two-horse wagon over a public pike road without a license in the county named, and this after the promulgation of the order quoted. Some of the grounds of demurrer go to the point that merely the substance of the order of the commissioners' court is set out in the indictment, when the entire order should have been. The principle has been determined adversely in these cases: N. C. & St. L. Ry. v. Alabama City, 134 Ala. 414, 32 So. 731; Goldthwaite v. City Council, 50 Ala. 486. The indictment was not subject to the other grounds of demurrer, as will appear.

The appellant insists that subdivision 5 of section 21 of the act is void, because it is a "bill for raising revenue" and was passed within the last five days of the session. Const. art. 4, § 70. In Perry County v. Railroad, 58 Ala. 557, the constitutional term under consideration was defined to be "to levy a tax, as a means of collecting revenue." This term is incorporated in our present fundamental law, and with it the judicial construction quoted. The maintenance, improvement, and protection of public roads has become an important feature of county government. As the means of communication and transportation it has no practical substitute; and efforts to promote the perfection of public roads, through governmental supervision and agency, should be encouraged and advanced in all legitimate ways. The act under consideration seems to afford a general system for the maintenance, improvement, and protection of the public roads of the county of Jackson, and in furtherance of the worthy purpose includes in its...