State v. Southern Ry. Co.

• Decision Date: 24 June 1897
• Citation: 22 So. 589,115 Ala. 250
• Parties: STATE v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

22 So. 589

115 Ala. 250

STATE v. SOUTHERN RY. CO.

Supreme Court of Alabama

June 24, 1897

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by the state against the Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. affirmed.

The complaint was as follows: "The plaintiff claims of the defendant, the Southern Railway Company, a body corporate the sum of $545.83, with interest thereon from the 1st day of January, 1897, due as taxes as hereinafter stated. And plaintiff saith that said sum is the amount of the tax due for the year 1896 from defendant upon its property subject to taxation under and by virtue of an act of the general assembly of Alabama, entitled 'An act to amend sections 8 and 10 of an act to create the board of education of the city of Birmingham and to prescribe the powers and duties of the same,' approved February 18, 1895 (Sess. Acts 1894-95, p 738). And plaintiff further saith that under and in pursuance of said act the tax assessor of Jefferson county regularly assessed against defendant and upon its taxable property within the corporate limits of the said city of Birmingham or that is lawfully taxable therein, a tax of twenty cents upon every one hundred dollars' worth of such property for said year, and the amount so assessed is the sum above demanded, to wit: $545.83. And plaintiff saith that the assessment of said tax was made under said act, and was in all things regular under the provisions and terms of said act, and the same was regularly entered upon the tax books for Jefferson county for the year 1896, and the said books were delivered to the tax collector of said county. Wherefore plaintiff saith that the said sum of $545.83 is due and unpaid, and the said tax collector has made lawful demand on defendant to pay said tax but defendant has refused and still refuses to pay same. And plaintiff further saith that the municipal authorities of Birmingham laid independently of said act, and for municipal purposes for the year 1896, a tax on the property in said city of one-half of one per centum of the value of such property as assessed for state taxation during the preceding year, viz.: 1895, which tax was and is exclusive of the tax herein sued for. Hence plaintiff brings its suit."

To this complaint the defendants demurred upon several grounds, which may be summarized as follows: "(1) Because the said act entitled 'An act to amend sections 8 and 10 of an act to create the board of education of the city of Birmingham, and to prescribe the powers and duties of the same,' approved February 18, 1895, and published in the Acts of the General Assembly of Alabama of 1894-95, p. 738, is unconstitutional and void in this: It is violative of section 2 of article 4 of the constitution. (2) Because said act contains more than one subject. (3) Because said act, though purporting to amend only sections 8 and 10 of the act creating the board of education of the city of Birmingham, in fact amends of extends the provisions of section 3 of said act, and section 9 of said act. (4) Because said act, besides amending or extending the provisions of sections 8 and 10 of the act which it purports to amend, lays and levies upon all the taxable property within the corporate limits of the said city, an annual tax of twenty cents on every one hundred dollars' worth of such property, and provides that the same shall be assessed by the tax assessor of Jefferson county at the same time and in the same manner, and under the same penalties and entered on the same lists with other state taxes, and that the said tax shall be collected by the tax collector of Jefferson county at the same time, and as a part of the state taxes. (5) Because so much of said act, under and by virtue of which the tax sued for is assessed and levied, embraces subjects and provisions not germane to the subject-matter of sections 8 and 10 of the act of which it purports to be amendatory and is violative of the constitution, in this: Said section 4, besides making certain provisions relative to the powers and duties of said board of education, levies a state tax on property within the city of Birmingham, and confers additional powers and imposes additional duties upon the tax assessor and tax collector respectively, of Jefferson county, Alabama. (6) Because so much of the said act under and in pursuance of which the tax sued for was assessed and levied, is unconstitutional and void in that it violates sections 1 and 5 of article 13 of the constitution. (7) Because that part of the said act under which the tax sued for was levied, levies taxes upon property in the corporate limits of Birmingham or authorizes the collection of such taxes in any one year for the use and benefit exclusively of the public schools of Birmingham in excess of the rate of one-half of one per centum of the value of such property, as assessed for state taxation during the preceding year, and is, therefore, violative of section 7 of articles 11 of the constitution. (8) Because neither the state of Alabama nor any of its agencies has the constitutional power, right or authority to alienate or divert moneys raised by state taxation and which should be applied to the equal use and benefit of the school children of the entire state, to the exclusive use and benefit of the school children of the city of Birmingham. (9) Because said act is violative of section 32 of article 4 of the constitution, in this: It provides for an appropriation of the state's revenues for public-school purposes other than by a general appropriation bill; and it also violates said section, in that, while making an appropriation of the state's revenue, it is not confined to that subject exclusively, but comprises two or more subjects of legislation."

This demurrer was sustained, and, the plaintiff declining to amend its complaint or plead further, judgment was rendered for the defendant. The plaintiff appeals, and assigns as error the sustaining of the defendant's demurrer to its complaint, and the judgment rendered.

Tillman & Campbell, for the State.

Smith & Weatherly, for appellee.

HARALSON J.

1. The caption of the act we are invited to construe is, "To amend sections 8 and 10 of an act to create the board of education of the city of Birmingham, and to prescribe the powers and duties of the same." Acts 1894-95, p. 738.

Section 8 of the act proposed to be amended (Acts 1884-85, p. 528) provides simply "that the board of education shall have power to charge in the several grades of said schools such incidental or other fees as may be deemed necessary for the proper conduct of said school"; and the amendment thereof was but a slight change, conferring on the board power to charge nonresident pupils such tuition or other...