Western Union Telegraph Co. v. City of Decatur , 16 Ala. App. 679 ( 1918 )

The application for rehearing is rested upon two grounds:

That the court erred "(1) in holding that the municipality was legally authorized to levy a privilege tax for revenue upon telegraph companies in this state; (2) in holding that the pleas setting up the unreasonableness of the license tax are bad for failing to aver that the charges made for intrastate service were reasonable."

To sustain the first ground, the contention is now made that the provisions of section 1339 of the Code authorizing cities and towns to levy a privilege tax for revenue was repealed by the act of 1911 by implication. There is no room for the application of the doctrine of implied repeal in the face of the express declaration, excepting licenses required by cities and towns. Lewis' Sutherland, Statutory Construction, § 247. Our utterances in the original opinion fully answer the first ground of the application.

The second ground of the application, and the argument in support thereof, is founded on a misconception of the court's holding, which was not that the pleas were defective for failing to aver that the charges actually made for intrastate services were reasonable, but, the burden being upon the defendant to overturn the presumption that the ordinance was reasonable, it was necessary for the pleas to aver that the defendant, at this particular office, conducted its business with reasonable care and diligence, and to this end made andcollected for all such service the usual and customary charges.

While the courts will take judicial knowledge as to the minimum charge made by telegraph companies in this state between given points (Western Union Tel. Co. v. Saunders,164 Ala. 245, 51 So. 176, 137 Am. St. Rep. 35), this rule cannot be extended so as to require them to take judicial notice of the volume of business conducted by a telegraph company at a particular telegraph office, or that the telegraph company and its agents have frugally conducted the business of the office, nor that a particular agent of a telegraph company has acted With reasonable diligence in respect thereto. The averments of a plea are construed most strongly against the pleader, and all intendments are resolved against him. Scharfenburg v. New Decatur, 155 Ala. 651, 47 So. 95; Argo v. Sylacauga Merc. Co., 12 Ala. App. 442, 68 So. 534.

Application overruled.