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

upon it, It's remedy for collection is by
an ordinary action at law, just like any
other debt is collected, and the courts
have declared that, in the absence of ex-
press authority so to do, the city cannot
enforce the payment of a street tax by
an arrest and prosecution for failure to
pay the same.
PRESENTED IN GEORGIA CASE
This question was squarely presented
in a Georgia case, wherein a police Of
ficer arrested a citizen for failure to pay
street tax levied by the city of Bruins
wick The citizen sued the officer for
damages for making the arrest. 1t was
not disputed but that the city had the
right to levy the tax, and that the tax
had not been paid, The supreme court
, of Georgia held, that the section of the
city charter (Which is the same as Sec
ton 1886 of the CODE, did not make it
penal to refuse to pay the tax or work
the streets, and that, therefore, the mayor
and common council could not enforce
the payment of the tax by resort to the
criminal law. The officer was held liable
for the arrest This decision has been
cited approvingly by all authority on mu-
nicipal law.
| 1t would therefore seem that the city
exceeded it's powers in adopting an ordi-
nance requiring a citizen to work on
/ the street or pay the tax, and making
| him guilty of a misdemeanor, if he failed
| to do either one or the other The pro-
vision authorizing it to levy the tax does
not authorize the city to enforce it's
collection that way, and, in fairness to
| any officer who may be ordered to make
an arrest under the street tax erdi-
nance, the city should hold him harmless
| in event he is sued for making an arrest
| under an ordinance whose validity is so
much doubted.
| There is a federal question involved, Or
| that might arise in event a person was
prosecuted criminally for failure to pay
| the tax. but that would not arise unless
| the suggestions above noted were held
| to be not we'll taken. However, 1t is
prob able that the federal question will
| be carried to the United States court
here in the next few days by way of
| an injunction for preventative relief. The
principle decided in the peonage cases is
that the state cannot authorize the i'm
prisonment of citizen for his failure to
discharge a financial obligation, where
| the charge is not an incident (such as
COSTS to a criminal prosecution.
HORACE C. WILKINSON.
], @. SMITHS VIEWS
J. j. Smith has written the following
| opinion;
To the Editor of The Herald:
| I have had occasion for the past
| the city street tax ordinance passed
several weeks ago by the city commits
sion and 1 find that there are several
very interesting legal questions which
| might invalidate the ordinance IL 1t
! is passed on by the courts. And in
view of the fact that a large number
| of male citizens have already paid
$3.50 street tax, and for the further
| fact that on August I, 1915, something
| like 10000 to $4,000 citizens will be
subject to arrest and trial in the po-
lliee court fer not paying their street
| tax it would be we'll to have the matter
| tested out in the courts before the
city makes any further collections un-
der this ordinance. Because, If this tax
| is paid and the ordinance should be
| later declared null and void, the city
| commission would, no doubt, follow the
same course that it did in refusing to
refund the fees collected under the
liquor tax ordinance, which was de-
| clared invalid by the supreme court.
The first serious objection that I see
to this ordinance is that it is in con-
| flict with an act drawn, introduced and
| passed by Senator Judge of this coun-
| ty in the last legislature, which reads
1 as follows:
| Section /. All counties in the state
of Alabama, whose aggregate tax val
! ues, according to the complete tax as
|
or hereafter amounting to as much as
| 500, 900, 900, all persons shall be re-
| lieved of any legal obligations to work
| on the public roads or to pay any PEN
atty thereof
"See, 2. All general and local laws
in conflict with the provisions of this
act be- and the same are. hereby re-
pea1ed.
Sec. 8. Nothing herein contained
shall prevent or interfere with the
working of county convicts on the pub
| lie roads of the counties herein de-
seribed." (Approved, September 16,
1850
NOT LIABLE FOR BOTH
| The supreme court of Alabama in the
case of Tayioe VS.. state, 147 Alabama
4 1871, and in the case of Witt VS.. city
of Admission. 100 Alabama Ell, has said:
The payment of street tax in in
corporated towns and cities is in sub :
stitution for road tax, and person
cannot be liable for both for the same
period"
1t therefore appears reasonably Ger,
tain that as to the Judge bill, above
referred to, If persons in Jefferson
county are relieved of any obligations
| to work on the public roads, or to pay
ordinance imposing a street tax, if in
| conflict with this act of the legisla-
ture, would be null and void.
| street tax is a substitute for a
road tax and if there be no law COM
pelling the payment of road tax OF
| a penalty therefor in Jefferson county
it would seem that the city of Bir-
mingham would have no authority ia
| substitute street tax.
The act of the legislature known as
the "Goode BILL" on page 57S of the
Acts OF the Legislature, 1915, which is
referred to by Mr. Ullman. the city at
torney, was passed and approved FIVE
days after the Judge bill" Mr. I'LL
mans contention is that this act re-
peals the Judge bill, From reading
these acts of the legislature there APP
pears to be no conflict in the two bills,
as both bills have a field of operation
and can therefore stand. But aside from
| that, section 80 in the "Goode BILL"
provides as follows:
That this act shall not be con-
strued to repeal in part or in whole any
existing local or special law"
| The Judge bill only applies to coun-
ties having tax assessment of $780,
100000 or more, and as everybody knows
Jefferson county is the only county in
the state that has such assessment.
ANOTHER OBJECTION
There seems to be another very seri-
Gus legal objection to the street tax
ordinance.
That this ordinance provides that all
male citizens between the age of 81 and
IS, living in the city of Birmingham.
shall be subject to the payment of a
| street tax. This ordinance is in direct
conflict with section 9S4 of the code of
Alabama. which exempts all members