Turner v. Anniston Electric & Gas Co.
| Decision Date | 26 April 1917 |
| Docket Number | 7 Div. 866 |
| Citation | 75 So. 465,200 Ala. 89 |
| Parties | TURNER v. ANNISTON ELECTRIC & GAS CO. |
| Court | Alabama Supreme Court |
Rehearing Denied May 24, 1917
Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.
Mandamus by the Anniston Electric & Gas Company against T.A. Turner as President of the Commissioners' Court of Calhoun County. From a judgment granting a peremptory writ, defendant appeals. Transferred from Court of Appeals under Acts 1911 p. 449, § 6. Affirmed.
Petition for mandamus by the Anniston Electric & Gas Company against the members of the commissioners' court of Calhoun county, Ala., praying that a writ be directed to them requiring the issuance of a warrant to petitioner for the sum of $553.50, which the petition alleges was paid as a franchise tax under the General Acts of 1907 (page 418), and that said sums paid by it during the years 1908, 1909, and 1910 were paid through a mistake or error, in that the said act under which said franchise taxes were paid was unconstitutional, as declared by the Supreme Court of the United States in the case of Southern Railway v Greene, 216 U.S. 400, 30 Sup.Ct. 287, 54 L.Ed. 536, 17 Ann.Cas. 1247. The petition further alleges that application was duly made by it to the probate judge of Calhoun county under the provisions of the act of August 25, 1909, amending section 2411 of the Code of 1907, and under the amendment of section 2411 of the Acts of 1915, p. 120, praying that said probate judge grant to the petitioner a certificate to enable the court of county commissioners to draw a warrant on the county treasurer in favor of petitioner for said sum so paid through mistake or error. The petition further avers that the said probate judge granted to the petitioner the said certificate, which appears in its proper form. It is then alleged that the certificate of the probate judge was presented to said commissioners' court at a regular term of said court, and an order entered denying the same.
The petition was demurred to upon numerous grounds, among others that the certificate of the probate judge is without authority of law, and that it does not show that the money claimed was paid through a mistake or error on the part of the probate judge, that it does not show any duty on the part of the defendant to pay the money, and that it fails to show that said money was paid within two years before the approval of the act of February 22, 1915. The demurrers were overruled. Thereupon the respondent filed answers setting up that there was adequate remedy at law in assumpsit, and that there is no law which authorizes a refund of money which was paid as alleged in said petition. The respondent also pleaded the statute of limitation...
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Melof v. Hunt
...68 So. at 866. See also Sparks v. Louisville & Nashville Railroad Co., 277 Ala. 25, 166 So.2d 865 (1964); Turner v. Anniston Electric & Gas Co., 200 Ala. 89, 75 So. 465, 466 (1917). Thus, it appears that Alabama taxpayers have yet a third means in which to raise a constitutional challenge t......
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...192 Ala. 129, 68 So. 865; Lovelady et al. v. Loveman, 191 Ala. 96, 68 So. 48; Allgood v. Sloss Co., 196 Ala. 500, 71 So. 724; Turner v. Anniston Co., 75 So. 465. It also well settled that the respondent could not invoke the statute of limitations. It was suggested in the opinion in the Allg......
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... ... trial court did not commit error in granting the writ as ... prayed. See Turner v. Anniston Elec. & Gas Co., 75 ... So. 465, 200 Ala. 89; Board of Rev. v. Sou. Bell T. & T ... ...