Kentz v. City of Mobile , 120 Ala. 623 ( 1898 )

HARALSON, J.

The new charter of Mobile (Acts, 1896-97, p. 542) in section 28 bestows on the general council of the city, for the purpose of carrying on the government of the city under its charter, the power to levy and collect a tax, each year, upon all the real and personal property, and all subjects of State taxation, within the city, not exceeding six-tenths of one per cent.

Section 43 provides, that the general council shall, “besides the tax heretofore authorized [under said section 28], have the authority to levy and collect from all persons and corporations, trading or carrying on any business, trade or profession by an agent or otherwise within the limits of said corporation, a license tax which shall be fixed and declared each year by ordinance of said corporation, ” and also, in addition to the license tax, it was provided, that “a vehicle license may be imposed in addition to business license, provided that said license shall only apply to vehicles used in the transportation of goods or merchandise and vehicles used for hire at the public stands.” In Davis v. Petrinovich, 112 Ala. 654, after careful consideration, we sustained a vehicle license tax, as a valid exercise of the pow.er competently bestowed by the legislature, and we need not here repeat what was then said and afterwards more elaborately discussed and sustained in the case of Phoenix Carpet Co. v. The State, 118 Ala. 143.

But, granting this power, it is objected that the tax was levied in this case against the vehicles themselves, and not against the persons owning them, and, therefore, it is a property tax. The ordinance of the city, itself, in section one, imposes a license tax on the persons carrying on business, trade or profession in the city, and the same, as the ordinance states, is. hereby fixed for such business, trade or profession as follows : — naming many trades and occupations and the license tax for each, one item being: ‘Drays, wagons and vehicles used in the transportation of goods and merchandise, and vehicles-used for hire at the public stands, $7.50.” It it manifest that the business or occupation tax referred to is required to be determined by the number of drays or vehicles that are used in the transportation of goods, and that the number of drays and other vehicles are referred to, not to impose a tax on them as property, but simply, to arrive at a proper ascertainment of the just amount of the license tax in each particular case. A party engaged in business in the city, and employing drays or other vehicles for the transportation of their merchandise, or parties using vehicles at the public stands, may use one or many of them, and different persons may use more or fewer of them than other persons engaged in the same business. The number so used, therefore, was a proper, and perhaps as good a basis for determining the amount to be paid for the license to do the business, as.any other — if not the best. The defendant below was not shown to have paid or been assessed for any other business tax than such as was imposed on the wagons he employed in his business in the city.

It is objected, again, that the defendant lived outside the corporate limits of the city, there manufactured his brick, and employed his wagons in hauling and delivering his brick in the city to persons who bought them; charged no extra fee for hauling them, and derived no profit thereby, except such as accrued incidentally from the sale and delivery of the brick. He was no more exempt from such a tax than peddlers, brokers, factors, háckmen and others, who are required to procure a license to exercise their various-callings and pursuits, all of whom are required to submit to reasonable exactions ; and the- city being required to keep its streets in repair¡ it is but reasonable and just that those who use them with their vehicles, in carrying on a business in the city, whether they reside in its corporate limits or not, shall contribute to their repair by submitting to a reasonable sum for a license.—Gartside v. City of E. St. Louis, 43 Ill. 47.

- The city of Memphis claimed under its charter the right to demand a license tax under an ordinance as follows-: “Every owner of a wagon or other vehicle, kept or used for free delivery of goods to customers or others in the city, for each vehicle per annum, $10.” A rolling mill for the manufacture of bar iron, near Memphis, but outside the corporate limits of the city, owned some drays kept at the mill, which were used in the free delivery of iron manufactured at the mill to their customers and merchants within the corporate limits, and the defendants, themselves, lived near the mill outside the corporate limits: A license tax for thus using the drays was demanded of them by the city. The Tennessee court, held, and as we think properly, that the fact that the defendants resided and had their iron works outside the city made no difference; that they exercised the privilege of selling their goods in the city, and in so doing used its streets, and were properly assessable with a privilege or business tax.—City of Memphis v. Battaile & Co., 8 Heis. 524; 1 Rich. L. 364; Horr & Bemis on Mun. Ord., § 143.

Still again it is insisted, that the tax of $7.50 on each of defendant’s wagons was unreasonable, but we think not. The value of the wagons, certainly,, would not be a fair criterion to determine the amount of the tax to be levied. As much business may be carried on and as much use of the streets may be made, and as much damage done to them, by wagons worth no more than defendant’s were said to be worth — $30 each — as by vehicles of far greater value. The number of vehicles one employs is a better and fairer criterion of what the tax ought to be, than their value. The money arising from license tax appears to be for revenue, as is required by the charter, section 44, to be paid in bank to the credit of the general council, to be" drawn out and used by them only, in such sums and at such times as the same shall be actually required, and only for the expenditures of the city authorized by law.—Van Hook v. Selma, 70 Ala. 363.

The only other questions remaining are such as arise out of the alleged unconstitutionality of that part of the 6th section of the city charter, which, providing for the election of a recorder among other officers, directs that “Said Recorder shall be learned in the law and a practicing attorney, at the time of his election.” In the Declaration of Rights — section 2 of Art. 1 of the constitution of this State — it is provided, “That all persons resident in this State, * * * are hereby declared citizens of the State of Alabama, possessing equal civil and political rights.” Under this provision, each citizen is entitled to all the rights or privileges which any other citizen can enjoy or possess, and every citizen has the right to aspire to and hold any office, or pursue any lawful vocation, any other citizen may hold or pursue ; except wherein the power to destroy this equality is expressly given or arises by clear implication from some other part of the fundamental law.—Dorsey’s Case, 7 Port. 293; Cooley Const. Lim., 485.

The only other provision of the constitution which limits this right of the citizen to aspire to and hold public office is found in section 14, Art. VI of the constitution, providing that the judges of the Supreme Court, circuit courts and chancellors, and the judges of the city courts shall be “learned in the law.” Except for this provision, any citizen, without reference to his learning, might aspire to hold either one of these offices ; but with it, all not learned in the law are prohibited from holding them. Those excluded from the one, are included in the other class who may hold any office. The specification as to these judges, is an implied prohibition against legislative interference to add to the condition or to extend the penalty or disqualification to other cases.—Cooley Const. Lim., 78-79; Thomas v. Owens, 4 Md. 189; Barker v. People, 3 Cowen 686; Dorsey’s Case, supra. The counsel for the city does not deny, that this legislative restriction as to the holding the office of. recorder, is in violation of the Declaration of Rights, as it plainly appears to us to be. But, it is contended by him, that the restrictive, offending words may be stricken from the particular section where they appear, without in anywise impairing the force and effect of the act. It often happens that an act of the legislature contains provisions opposed to the constitution, while others apart are unobjectionable. In such cases, the rule is, that those which conflict with that instrument are to be held as nullities ; and in such case, whether the other parts of the act not so offending, must also be adjudged void, must depend upon, the object of the law, and to what extent or in what manner the rejected portion affects what remains. Discussing this subject, Judge Cooley says : “Where, therefore, a part of the statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so ■connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, yet be perfectly distinct and separate, so that the first may stand though the last fall. * * * If when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed according to legislative intent, wholly independent of that which was rejected, it must be sustained.”—Cooley Const. Lim. 209-11. Our own court, in many adjudications uphold this doctrine.—M. & O. R. R. Co. v. The State, 29 Ala. 573; Lowndes County v. Hunter, 49 Ala. 507; Davis v. Minge, 56 Ala. 121; Bradley v. The State, 99 Ala. 177; Randolph v. B. & P. Supply Co., 106 Ala. 501, 513.

The special provision of'the section 6 of the charter relating to this particular matter reads : “ That there shall be elected the first Monday in March, 1897, and on .the first Monday in March, every three years thereafter, in the manner herein provided, a mayor, a recorder, a city engineer, a city attorney and a city clerk, who shall hold their offices for three years and until their successors are elected and qualified, and in the event that any of said offices shall become vacant by the death, resignation, removal, or otherwise, the general council shall fill such vacancies for the unexpired term with the exception of mayor, which is hereinafter provided for. Said recorder shall be learned in the law and a practicing attorney at the time of his election,” etc. It is obviously plain that the offending clause is distinct and separable from the other provisions of the section of the act in which it occurs, and that what remains,, if this clause be stricken may stand as a perfect and intelligible provision. To hold that the legislature would not have passed the one without the other, would necessitate the presumption that the legislature, in providing for a government for Mobile, would not have created the office of recorder, without the provision in question, a presumption we may not indulge without doing violence to their best intentions in providing for the good government of the city. If they had been advised at the time and believed, that said provision was obnoxious to fundamental .law, there scarcely remains room to doubt, that they would have stricken it, leaving the act as it will remain without that clause. The general, apparent purpose of the legislature will not be defeated by giving operation to that section, rejecting the provision held to be void.—S. & N. Ala. R. R. Co. v. Morris, 65 Ala. 193; Cooley Const. Lim., 177.

There was no error in giving the general charge, requested by plaintiff, that, under the agreed state of facts, the jury should find the defendant guilty, and in refusing a similar charge, requested by defendant, that, they should find defendant not guilty.

Affirmed.