State v. Bley

• Decision Date: 23 April 1909
• Citation: 50 So. 263,162 Ala. 239
• Parties: STATE v. BLEY.
• Court: Alabama Supreme Court

50 So. 263

162 Ala. 239

STATE v. BLEY.

Supreme Court of Alabama

April 23, 1909

Rehearing Denied June 30, 1909.

Appeal from Circuit Court, Marengo County; John T. Lackland, Judge.

Proceedings by the State against Isidore Bley for the taxation of bank stock. The proceeding being dismissed, the state appealed to the circuit court, and from an order dismissing the appeal it again appeals. Reversed and remanded.

Alexander M. Garber, Atty. Gen., Thomas W. Martin, Asst. Atty. Gen and William Cunningham, for the State.

De Graffenried & Evins, for appellee.

SAYRE J.

In the year 1906 the tax commissioner of Marengo county commenced a proceeding before the court of county commissioners against the appellee to require him to assess for taxation certain shares of the capital stock of a national bank at Demopolis. At the hearing the proceeding was dismissed on the ground that the stock had been already assessed. Within 10 days of the judgment the state sued out an appeal to the circuit court. On motion in the circuit court the appeal was dismissed.

Section 1 of the act approved September 30, 1903 (Gen. Acts 1903, p 295), provided that from the order of the court of county commissioners disposing of an additional assessment reported to that court by the tax commissioner the tax commissioner might appeal within ten days to the circuit court. It appears that the circuit court, in dismissing the appeal on the motion of the appellee, went upon the theory that the provision of the act referred to was unconstitutional and void, for the reason that it did not afford to the parties an equal opportunity to appeal. The argument in the beginning is that the state may not discriminate between parties. The full force and effect of this argument must be conceded in its application to judicial causes pending between private parties. But the tax commissioner proceeds under the statute as an officer of the state, and in the interest of the state in the exercise of one among the highest attributes of sovereignty, the imposition of taxes. In Ex parte Macdonald, 76 Ala. 603, it was argued that the statute which authorizes suits to be brought in the name of the state without giving bond or security, or causing affidavit to be made, though the same may be required in actions between private citizens, was unconstitutional as dispensing with due process of law. This court responded to the argument in this language: "The objection, then, reduces itself to the proposition that the state must enter its own courts upon terms of perfect equality with its own citizens, and that the phrase 'due process of law' carries with it the essential idea that the Legislature can enact no law under which benefits can be claimed for the sovereign that are denied to the citizen. To state such a proposition is to deny it." A familiar example of the asserted prerogative of the state is to be found in the fact that, constitutional provision apart, it is not liable to suit in ordinary cases unless by its own consent. Likewise, in pursuance of the principle that the sovereign can do no wrong, applicable to republican forms of government, it has always been held that the state may deny its remedies to slothful persons having grievances, and so secure the repose of society, by the enactment of statutes of limitation by which it is not itself bound unless by its own express consent. "Nullum tempus occurrit regi." Other examples of the same prerogative are to be found mentioned in Ex parte Macdonald, supra.

It has been mooted whether, when the state goes into its own courts to contest with the private citizen matters not affecting its sovereign powers, as where, for example, it contests with a citizen the ownership of property or rights growing out of contract, its prerogative ought not to be abated, so as to put it upon a footing of equality with the private citizen in the assertion of such rights; but that question is not raised here, and, of course, is not to be decided. The general principle hereinbefore referred to, which is a partial expression of the doctrine that there are no limits to the legislative power of the state government save such as are written upon the pages of the state or federal Constitution, must be conclusive against the appellee's right to have the state's appeal dismissed out of the circuit court for the reason upon which it proceeded, unless his further contention that the Constitution secures to him, in common with all private parties litigant, the right of appeal absolutely, or, in any event, an appeal in order that the constitutional guaranty of trial by jury may not be impaired.

By the Constitution the right of trial by jury is made inviolate. The settled construction of this provision is that it does not enlarge the right of trial by jury, nor extend it to cases where no such right existed prior to the Constitution. Tims v. State, 26 Ala. 165; Thomas v. Bibb, 44 Ala. 721; Montgomery & Fla. Ry. Co. v McKenzie, 85 Ala. 546, 5 So. 322. The appellee will...