The age-herald., 1902-01-03

letter to all the tax assessors and col iectors of the state relative to the pay ment of the poll tax. The following copy, which explains itself, was received in Birmingham last night:
 Dear Sir: have had large number of the assessors and collectors of the state to propound the question to me of What would the tax rate for the year 1902 be7" This referred to the attorney general for his written opinion. He is of the opinion, and in this I concur, that the rate fixed by the act of the Legislature before the adoption of the constitution will control in the assessment and collec- ton of taxes.
 There seems to be some confusion in regard to- the payment, collection, etc., of poll taxes, and I have received a large number of communications from assessors and collectors on this subject, wishing to know whether since the ratification of the new constitutions:
 1. The payment of the poll tax could be enforced by law?
 2 Whether the collection of any fee could be enforced by law
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  simplified. and the investigation left to the one charge contained in specifications B. and C. he said. Tt would save the taking of testimony in the other matters. He read from sections Is and 23 of the statutes to show that subordinate of ficer was without authority to issue or ders except while in active service or in preparation for such service. He sought to show that an officer was not amean- h&1 <1rA- .rI.tI A,. tive service.
 Not In Active Service.
 Colonel Kyle was not in active service when he failed to obey an order to &C., company Colonel Higdon on a tour of inspection, and at the date charged with writing a disrespectful letter to his su- perior. He was, therefore not guilty of any violation of the statutes
 General Oates consumed about thirty minutes in arguing the pleadings. He went more Into detail than did MT. To- max. He said 1t mattered not as to the form of the pleadings. It was a matter for the court to decide what 1t conceived as subjects for investigation, but it was without Jurisdiction to try the accused for violation of the articles of war and the statutes of the state at the same time. It was wholly without jurisdiction In the former, as the Third Regiment had been mustered out of the service of the United States before these charges were raised. It had Jurisdiction for the viola tion of the statutes of Alabama.
 General Oates contended that the Ma tional Guard was not in continuous ser vice. He said that after an order had been issued to a colonel by the Governor, the colonel then had the authority to is- sue an order to his subordinate. General Oates closed with brief reference to his own military career and experience.
 Question of Authority.
 Judge Advocate Hubbard closed for the state. He said it was a matter for the court to decide whether Colonel Higdon was or was not acting under proper au- thority It was a question of evidence.
 He said soldier did not have to don nn'forr' to make him amenable to the law. He took an oath to obey all laws while a member of the military. Special l,.v..nc. Was made to cases while on ac- tive. duty, and all others were punishable at any time The charges against Kyle were not alluded to in the exceptions pro- vided in the statutes.
 When Judge Advocate Hubbard finished at 1:50 p. m. the court recessed for lunch until 3:30.
 It was 3:42 when the court reconvened. A recess was taken for the court to con- slider the pleas. In two minutes the court returned. and President Dumont an- nounced the decision as follows:
 Court Strikes Out the Pleas.
 "The court sustains the motion to strike the pleas, with leave to accused to intro- duce In evidence under plea of not guilty all matters relating to said plea"
 MT. Lomax then read the answers to the pleas.
 kyie's Answers.
 Comes the accused. o. Kyle, and for an- swer to the first specification, first charge, pleads:
 1. Not guilty.
 2. That the alleged order mentioned in said specification was not made by said Col. E. L. Higdon in the execution of any lawful powers of his said office as colonel of the Third Infantry, Alabama National Guards.
 3. That the time of the receipt by him of the order to assist in the inspection of Companies E, F, and M, he was in the active discharge of the duties incumbent and for the State of Alabama which office he then held; that he was engaged in holding a term of the circuit court of Morgan county.
 4. That at the time of the receipt by him of the alleged order he was not in the active military service of the State of Alabama nor had the Alabama National Guard or any part thereof been called into active service of the State of Ala bama for any purpose whatever.
 Is Unconstitutional.
 5. That the act of the General Assem- bly, of the state of Alabama. approved February 23 1899, is unconstitutional and void in that 1t purports to authorize the infiiction by this court of punishment as for the commission of an infamous of fense and is violative of section g. article 1, of the constitution of Alabama which provides that no person shall for any in- dictable offense be proceeded against oriminaliy by information except in cases arising in the militia or volunteer forces when in actual service or by leave of the court for misdemeanur, mis6easance or exturttun' in office otherwise than was provided in this constitution.
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