The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1916-07-29

will hold that the word "roaf' as en-
ployed in the constitution does not in
clude Streets" was was intimated by
Justice Mcclellan in the case Of the
board of revenue Of Jefferson county VS.
the state ex rel city of Birmingham, in
the 54th Southern Reporter, Page 760.
This case was first decided against tho
city of Birmingham by the supreme court
but on rehearing it was decided in the
city's favor and from that time-1s11-the
city has been collecting one-half of the
road tax assessed by the board of reve-
nue., and this fund, as provided by the
statute, shall be used exclusively for
maintaining the streets in the corporate
limits of the city.
This communication is not given with
any view of preventing the city of Bir-
which it is legally entitled to, but is in
tended to show that there is another
side to the proposition, other than this
dead sure opinion of the city attorney
Very truly yours,
ROBERT H. THACH.
Birmingham, July %, 1916.
WILKINSON'S OPINION
Mr.. Wilkinson gives the following opin-
To the Editor of The Age-Herald:
The city bases its right to levy a
street tax on section, 1896 of article %
of the code, which reads as follows:l
THE inhabitants of any municipality
shall be exempt from working on the
roads or highways, outside the linita
thereof, and may be required for the
support of streets within such limits to
pay street tax of not exceeding IS per
year"
This section of the code was originally
section 121 of an act approved August
mt.
came a law after the code was adopted.
When the code was ordered printed, sec
ton 121 of the act was carried forward
as section 1886 Of the code. Article % of
the code relates to the subject of taxa
ton, and this article was declared un.
constitutional by one of the courts in this
county about two years ago In a case
Involving the validity of a tax sale, the
court holding that all tax sales made
Hereunder were void, because the sub
jeet of taxation did not appear in the til
tie of the act, and for that reason ar
ticle % of the code never became a law.
This case was never appealed as the par
ties thereto were satisfied that the de-
cision of the trial court was correct.
A case involving the validity of the sec
ton Immediately preceding the section
ON which the city relies, was carried to
the supreme court and the court for a
like reason, held said preceding section
unconstitutional. This section related to
the payment to the city by the county of
one-half of the special road and bridge
tax but was part of the same bill, in
which the section authorizing the inposi-
ten of street tax appears
NEVER LEGALLY ENACTED
1t therefore appears that section 1886 of
the code was never legally enacted, and
for that reason never became law. and
invested with the authority to levy a
street tax.
If it be assumed, however, that section
1886 of the code is a valid enactment,
there is still an obstacle in the way of
the city arresting and imnrisoning a citi-
zen for failure to pay the tax.
BY reference to the above noted Sec
ton, it will appear that said section does
net prescribe a penalty for failure to
pay the tax therein authorized, neither
does it authorize the city to enforce pay
ment of the tax, by compelling a citizen
to werk on the streets, or having him
arrested and imprisoned for failure to
either pay or perform the labor on the
public highways, All this section of the
code does Is to authorize the city to levy
the tax; it does not confer power on the
city to make 1t violation of the law
to fail to- pay it.
1t is we'll settled that even though the
city is given right to levy a tax, yet
it cannot prescribe penalty for failure
has expressly conferred such authority