Mills v. Court of Com'rs of Conecuh County

• Decision Date: 29 January 1920
• Docket Number: 3 Div. 428
• Citation: 204 Ala. 40,85 So. 564
• Parties: MILLS v. COURT OF COM'RS OF CONECUH COUNTY.
• Court: Alabama Supreme Court

85 So. 564

204 Ala. 40

MILLS v. COURT OF COM'RS OF CONECUH COUNTY.

3 Div. 428

Supreme Court of Alabama

January 29, 1920

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

Petition for writ of certiorari by C.E. Mills, to be directed to the Court of County Commissioners of Conecuh County, to review and vacate an order of said court levying an automobile tax. From the decree rendered, the petitioner appeals. Affirmed.

Hybart Hare & Ratcliffe, of Monroeville, for appellant.

Hamilton & Page, of Evergreen, for appellee.

GARDNER J.

Appellant contends that the order of the commissioners' court, here sought to be reviewed, was absolutely void, as being beyond the power and authority of that court. He pursued the proper course in first petitioning the commissioners' court to have the same set aside, and failing therein, sought an annulment of the order by common-law writ of certiorari. Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 68 So. 971, and authorities there cited.

If the order was void, it so appeared upon the face of the proceedings, and there was no occasion for a bill of exceptions. We are of the opinion that the proceedings are properly brought here by appeal. Code 1907,§ 2843; Ex parte Campbell, 130 Ala. 171, 30 So. 385; Ferguson v. Court of County Commissioners, 187 Ala. 645, 65 So. 1028; Cook v. Court of County Commissioners, 178 Ala. 394, 59 So. 483; Miller v. Jones, 80 Ala. 89.

This brings us to a consideration of the validity of the order of the commissioners' court. In the act of September 14, 1915 (General Acts 1915, p. 489), certain license or privilege taxes were fixed on automobiles and motorcars kept for private use and also commercial purposes. On page 493, Acts 1915, there is a provision in said act for equitable distribution of the funds to the incorporated city or town in which the owner or licensee resides, and to the county when the fund is derived from such source outside of any incorporated city or town; then follows the provision that--

"The registration fee or license tax herein required to be paid on automobiles or motor cars or motorcycles shall be in lieu of all other privilege or license tax, which the state or any county or municipality thereof might impose, where the automobile or motor car or motorcycle is used by the owner for his private use and that of his family: Provided, however, that incorporated cities or towns are hereby authorized to collect a reasonable license or privilege tax on motor vehicles used for carrying passengers or freight for hire."

A very similar provision appears in the Acts of 1911, page 636, and was passed upon by this court in Ex parte Bozeman, 183 Ala. 91, 63 So. 201, and held not violative of section 221 of our Constitution.

Cities, incorporated towns, and counties have such power of taxation, as is delegated to them by legislative authority ( Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627, 72 Am.St.Rep. 143); and the legislative power to regulate the subject of taxation is unlimited, except so far as that department may be restrained by the state or federal Constitution (Hare v. Kennerly, 83 Ala. 608, 3 So. 683; Capital City Water Co. v. Board of Revenue, 117 Ala. 303, 23 So. 970

The above-quoted provision of the act of 1915 contains an express exemption from a levy of an additional license or privilege tax by cities, towns, or counties, where the automobile, motorcar, or motorcycle is used by the owner for his private use and that of his family. It is clear, therefore, that the judgment of the circuit court, quashing so much of the order of the commissioners' court as levied such additional tax upon automobiles used by the owner for private use and that of his family, was free from error.

The act of 1915 expressly authorized the imposition of a privilege or license tax by cities and towns on motor vehicles used for carrying passengers or freight for hire; but there is nowhere in the act any provision against the levying of such a tax by the counties. Section 2 of said act, found on page 527, is relied upon by counsel for appellant as at least indirectly prohibiting such a levy by the counties; but we do not read this provision to that effect, and do not think it can be so construed. We therefore find in the above-cited act of 1915 neither any prohibition against such levy by the counties, nor any express authority therefor.

A few days subsequent to the passage of the above-cited act, on September 22, 1915 (Acts 1915, p. 573), the Legislature passed another act to provide for the--

"establishment, discontinuance, construction, use, working and maintenance of the public roads *** of the several counties of this state; to define the duties and powers of the boards of revenue, courts of county commissioners, or other governing bodies of each of the several counties with regard to same," etc.

By this act the court of county commissioners and boards of revenue were invested with the general superintendence of public roads, and to this end were given legislative, judicial, and executive powers, except as limited by said act. Section 13 of this act gave to the commissioners' courts or boards of revenue, for the purpose of maintaining the public roads, bridges, and ferries of the county, the right to impose upon owners of vehicles which were used upon the public roads of the county "such license taxes for each class of vehicles as may be deemed advisable by such court or boards." The constitutionality of this section of said act was assailed in Windham v. State, 16 Ala.App. 383, 77 So. 963, and held to be free from the objections interposed thereto. Windham v. State, 202 Ala. 697, 79 So. 877.

At the time of the passage of this act, automobiles, both for private and commercial purposes, had for several years been in use upon the public roads, and that they were intended to be included by the use of the word "vehicle," as applied in said section, is, we think, too clear for discussion. 4 Words and Phrases (Second Series) 1146; Foster v. Curtis, 213 Mass. 79, 99 N.E. 961, 42 L.R.A. (N.S.) 1188, Ann.Cas.1913E, 1116; Fielder v Tipton, 149 Ala. 608, 42 So. 985, 8 L.R.A. (N.S.) 1268, 123 Am.St.Rep. 69, 13 Ann.Cas. 1012; Davis v. Petrinovich, 112 Ala. 654, 21 So. 344, 36 L.R.A. 615. Said ...