Southern Car & Foundry Co. v. Calhoun County

• Decision Date: 21 July 1904
• Citation: 37 So. 425,141 Ala. 250
• Court: Alabama Supreme Court
• Parties: SOUTHERN CAR & FOUNDRY CO. v. CALHOUN COUNTY.

37 So. 425

141 Ala. 250

SOUTHERN CAR & FOUNDRY CO. v. CALHOUN COUNTY.

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Anniston; Thos. W. Coleman, Jr., Judge.

Action by Calhoun county against the Southern Car & Foundry Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This was an action brought by Calhoun county against the Southern Car & Foundry Company, a corporation, seeking to recover license taxes for doing business in said county during the years 1899, 1900, and 1901, and also 10 per cent. of the license tax for each of said years, as fees for the tax commissioner. The complaint, as amended, contained six counts. The first, third, and fifth counts sought to recover the license taxes alleged to be due the county for the years 1899, 1900, and 1901, respectively; and the second, fourth and sixth counts sought to recover the fees due the tax commissioner for each of said years. The first count of the complaint is as follows: "(1) The plaintiff claims of the defendant the sum of two hundred and fifty dollars as a license tax for doing business in said county as a corporation during the year 1899; and the plaintiff avers that the defendant was a corporation having a paid-up capital stock exceeding one million dollars, and was engaged in business in said county during the year 1899, and was liable to the state of Alabama for a license tax of five hundred dollars. That the commissioners' court of said county, at a regular term of said court on, to wit, the ______ day of June, 1899, levied a license tax for the year 1899 on all persons and corporations required to pay license to the state, the said license tax levied by the county being fifty per cent. of the state license as authorized by law; and that at said term and by said order the said commissioners' court levied a license tax on corporations having a paid-up capital stock exceeding one million dollars of two hundred and fifty dollars, and that the said sum, with interest thereon from the 1st day of June, 1899, is due and unpaid." The third and fifth counts were identical with the first, with the exception that the years 1900 and 1901 respectively, appeared where the year 1899 appeared. By the second count of the complaint the plaintiff claimed of the defendant the sum of $25, being 10 per centum of the amount of the license for which the defendant was liable to the plaintiff for the year 1899, as alleged in the first count of the complaint, as a fee of the county tax commissioner of said county. It then averred the performance of the duties of the tax commissioner as required by law. The fourth and sixth counts were identical with the second count, with the exception that 1900 and 1901, respectively, appeared where 1899 appeared in the second count. The defendant demurred to the first, third, and fifth counts of the complaint upon the grounds that they did not show when the commissioners' court of said county had levied said tax for the years 1899 1900, and 1901, respectively, that they did not show how said commissioners' court had levied said tax, and that they did not state that said county levied any license tax on corporations. The defendant demurred to the whole complaint upon the ground that there was misjoinder of counts, in that by the first, third, and fifth counts the plaintiff sought to collect license tax alleged to be due for 1899, 1900, and 1901, and that by counts second, fourth, and sixth they sought to collect a fee alleged to be due the tax commissioner of said county, which fee was imposed as a penalty. Demurrers to the complaint were overruled. The defendant pleaded the general issue and the following special plea: "(3) That it had paid for and procured the license required by law from the proper authorities, before this suit was brought, to do business in Etowah county, Alabama, for the time mentioned in the complaint; that it had one of its car shops in Etowah county, Alabama, during the whole of said time, and was doing business in Etowah county during the whole of said time." To plea No. 3 the plaintiff demurred upon the ground that said plea presented no answer to the complaint, and that the payment of license required to do business in Etowah county was no bar to an action by Calhoun county for the license required by Calhoun county. This demurrer was sustained.

The cause was tried by the court upon an agreed statement of the facts, which was as follows: "That the defendant Southern Car & Foundry Company, is a corporation organized under the laws of the state of New Jersey. That said corporation was organized some time before June 1, 1899, and that on June 1, 1899, it had, and that it has had continuously since that date, a paid-up capital stock exceeding one million dollars. That the defendant engaged in busines in Calhoun county, Alabama, viz., in the business of building cars, etc., on the 1st day of June, 1899, and that it has continued in business in said county during the years 1899, 1900, and 1901 to the present, having been engaged during all of said time at Anniston, in said county, in the building of cars, etc. That the defendant has not taken out any license from the judge of probate of Calhoun county to do business in the state of Alabama for any one of said years and that before the bringing of this suit the tax commissioner of Calhoun county reported to the judge of probate of said county the failure of the defendant to take out such license for each of said years, and that the judge of probate cited the defendant to appear before him and take out the license for each year of said years, and that the defendant failed or refused to take out such license, and that thereupon this suit was brought. That said company has not paid any license tax whatever to Calhoun county for the years 1899, 1900, 1901. That while the defendant had during the...