The Montgomery advertiser., 1902-01-21
MANDAMUS
 IS ISSUED Collector Required to Re- ceive $l.50 Poll Tax. JEFFERSON COUNTY CASE City of Birmingham Claims Additional City Tax. Friendly Action By Kinds Peevy to Test Law--opinion Handed Down Yesterday by Justice Dowdell.
 The Decision.


 affirmed the decision of Judge A. A. Cole
 man of the Jefferson County Circuit Court, who held that a mandamus should issue to J. B. Francis, Tax Collector or Jefferson County, requiring him to re- ceiye $1.50 as poll tax from Hinds Peevy, a citizen of Birmingham!
 The petition for d mandamus was friendly and was submitted to the Cir cult Court to ascertain if persons who paid the Birmingham city poll tax are required to pay a State poll tax under the new Constitution to qualify them- selves to vote.
 The Supreme Court met at 10 o'clock yesterday morning, and the opinion by Mir Justice Dowdell was handed down. The court then adjourned until 10 o'clock this morning when cases from the Sev- enth Division will be called.
 The case of J. B. Francis against Hinds Peevey was submitted to the court early in last week by E. D. Smith, City Attorney of Birmingham, and J. P. Till man. They requested an early opinion.
 In view of the interest attaching to the case. liberal extracts are published from the opinion of MT. Justice Dowdeli.
 This is a petition for a mandamus filed by the appellee against the appel lant, who is the Tax Collector of Jeffer- son County, to compel him as such Tax Collector, to receive from the petitioner his poll tax for the year 1901" Says the court "rhe court below awarded the mandamus and from that judgment the present appeal is prosecuted.
 ''The facts are undisputed, and they show that the petitioner. Peevy. is res- ident of the city of Birmingham 2. :. and subject to the payment of poll tax.
 and that he owes the poll tax for the
 year 1901. and that the same is past due
 and payable; that Francis Is the State
 and County Tax Collector, and Gambilf is the City Tax Collector; that Peevy
 duly offered to pay the tax to Francis.
 and that he, Francis. refused to receive
 the same. The petitioner prays for a
 writ of mandamus to be directed to the
 said J. B. Francis as Tax Collector, com
 manding him as Tax Collector of Jeffer-
 son County. to accept the said $1.50 ten-
 dered by petitioner as poll taxes in order
 that petitioner may not lose his right
 to vote in the next general election As
 shown by the record, the refusal of the
 appellant was based upon the theory that
 under Section 51 of an Act approved
 February g, 1899, entitled An Act to es-
 tablish a new charter for the city of
 Birmingham, Ala which provides that
 the Mayor and Aldermen of Birmingham
 shall have full power and authority to
 dSSGSS, levy anu COlleCI d DOll tax
 the inhabitants of the said city, liable to
 pay the same, to be applied exclusively
 to the public schools of the city, |.
 said ta xto be assessed and collected by such officer as the board may appoint,
 under such rule and regulations as 1t may prescribe; such officer to have the same rights, powers and remedies for the col-
 lection of such poll taxes as are now possessed by the Tax Collector and the other officers of Jefferson County the right and duty Ao collect or receive the poll tax from the petitioner was conferred and imposed upon Gambill, he being the officer appointed by the municipal au- thorities of the city to collect the poll tax, and that the appellant was without legal authority to collect or receive the same"
 The court then quotes from Section 1, Article xii of the Constitution of 1875 rela- tive to poll tax. Section 1. Article xiii of the same Constitution is also quoted and the court says in obedience to the man. date contained in that Constitution the General Assembly enacted Section 3910 of the Code of 1896. which provides as fol- lows: "There shall be collected from every male inhabitant of this State over the age of 21 years and under the age of 45 years. not exempt by law. the sum of $1 50 as poll tax, which shall be applied exclusively in aid of the public school fund in the counties in which it is levied and collected
 50 it will be seen by ths section," continues the court, "a poll tax of $1.50 was levied on every male inhabitant of the State over the age of 21 years and under the age of 45 years, not exempt by law, and under it the petitioner became liable for its payment and although since the adoption of the new Constitution, which went into effect on the 18th day of November, 1901, there may be no remedy to enforce the collection of the same. yet this in no wise affects the right. of the petitioner to pay the same, and 1t be- came the duty of the appellant, as State and county collector to receive the same when rendered Code Paragraph 4O30. There is nothing in the Act of February 23 1899 entitled An Act to establish new charter for the city of Birmingham, a bove referred to, which either expressly or by necessary implication, repeals the general statute relating to poll taxes. Moreover. since a provision of the Con- stitution relating to such tax is man. datory. 1t would not be within the legisla tive power to direct by legislative enact ment the levy, assessment, collection and application of the poll tax provided for in the Constitution in any other manner or for any other purposes than such as IS provided in the Constitution. The Con- stitution provides that such poll tax. when collected. shall be applied exclu- sively in aid of tho public school fund in the counties paying the same. All that may be said of the act of February g. 1899, is that it is a legislative grant of authority to levy. assess and collect an additional poll tax upon the of the city of Birmingham to be applied exclusively to educational pur- poses within the limits of said city, and whether such power and authority may be conferred upon the municipality by the legislative enactment under the provi- sions of the Constitution, is question not necessary to the decision of this case. and as to which We are not called upon to intimate any opinion. The only ques- ton presented by this record for our de- cision is whether or not 1t was the duty of the appellant Tax Collector to receive and receipt the petitioners poll tax. when the same was rendered him by petitioner. and on the undisputed facts in the record our conclusion is that such was his duty It therefore follows that the Judgment of the Circuit Court must be affirmed"