Ex Parte Smith , 212 Ala. 262 ( 1924 )

If the construction placed on the ordinance in question in the opinion of Mr. Justice THOMAS were the only reasonable construction it would bear, we would agree with his conclusion that the ordinance is invalid for the reasons stated by him.

We think, however, that the language of the ordinance, imposing a license tax on the owners of vehicles "which areused in hauling, transporting, or moving staves, * * * saw logs, or any other character of logs or timber or lumber, etc." (italics ours), may be reasonably construed as applicable only to vehicles which are commonly used by the owner, and, in a general sense, devoted by him to those purposes, and not to vehicles which the owner may casually and occasionally use therefor.

In common parlance, "to use" means to employ for any purpose. In some cases it may refer to a single act of using, but more often it implies habitual action (State v. Stanley, 84 Me. 555,24 A. 983, 984), or some decree of continuity or permanence. Com. v. Patterson, 138 Mass. 498, 500. See, also, 8 Words and Phrases, First Series, p. 7228. We think that this was more probably the meaning intended by the language of this ordinance.

As often declared courts will choose that construction of a legislative act which will avoid unconstitutionality, if it be reasonable, even though an invalidating construction be the more reasonable.

These considerations lead to the conclusion, under the construction stated, that the ordinance is not subject to the constitutional infirmities charged, and is therefore valid.

The writ of certiorari will therefore be denied.

Writ denied.

ANDERSON, C. J., and GARDNER, MILLER, and BOULDIN, JJ., concur.

SAYRE and THOMAS, JJ., dissent.