Browne v. City of Mobile

SHARPE, J. — After the demurrer to the original complaint filed in the city court was sustained, there was filed what purported to be an amended complaint, setting out the cause of action in full which tvas apparently intended as, and which was treated in the subsequent proceedings as, a substitute for the original complaint. This was demurred to as the amended complaint upon the single ground that “said amended complaint fails to allege that defendant was engaged in carrying on the business of using a vehicle upon the streets of the city of Biobile in the transportation of goods, wares and merchandise without procuring a license therefor as required by said ordinance.” The filing of the amended complaint was an abandonment of the original, and the failure to reinterpose to the new complaint the demurrer which was filed to the original was an abandonment of such demurrer. This disposes of the first and second assignments of error. [168] The charter of the city of Mobile provides that “a vehicle license may be imposed in addition to a business license, provided that such license shall only apply to vehicles used in the transportation of goods, wares and merchandise, and vehicles used for hire at the public stands.” — Acts of 1896-97, p. 574. The ordinance averred in the complaint is an exercise of the poAver so conferred by the charter to impose a tax for the privilege of using .tiie class of vehicles named, Avhether the use constitutes the principal business of the persons so using them, or is only an adjunct to such business. The averments of the complaint Avere sufficient to bring the ordinance AAdthin the authority of the charter and also sufficient to bring the vehicle and its use by the defendant Avithin the class required by the ordinance to be licensed, and the demurrer to the amended complaint Avas, therefore, properly overruled. It is insisted under the last asignment of error that the ordinance is unreasonable and also that it provides double and unequal taxation. The tax imposed is upon the persons and not upon the vehicle itself. In that respect the provision in question, if it stood alone as it appears in the schedule, might be ambiguous, but considered in connection Avith the body of the ordinance and Avith the grant of power in the charter, it plainly appears as a tax for the exercise of a privilege. The city is required to maintain its streets. The use of vehicles upon them tends to their detriment and 'is a use not common to all the citizens; therefore, the municipal government may reasonably require those so deriving a special benefit from the streets to pay reasonably for the privilege. — Kentz v. City of Mobile, 120 Ala. 623; Gartside v. The City of East St. Louis, 43 Ill. 47; Davis v. Petrinovich, 112 Ala. 660. While the tax Avould seem more equitable if it were graduated Avith respect to the character of the vehicle yet Ave cannot say that it is unreasonable in amount or otherwise, and with the policy of the enactment Ave have nothing to do. The question argued in the briefs, and Avhich also was apparently intended to be raised by the last assignment .of error, as to the validity of that part of the charter act creating the office of recorder, was recently considered [169] in tlie case of Kentz v. City of Mobile, supra. We hold to the opinion there rendered which was to effect that eligibility to the office of recorder being not restricted by the constitution to persons learned in the law, and in view of the constitutional guaranty of equal civil and political rights to citizens of the State, the legislature was without power to enact iliat “said recorder shall be learned in the law and a practicing attorney at the time of his election;” but that the invalid clause can and must be alone rejected, leaving the remainder of the act unimpaired. Finding no error in the record, the judgment of the city court will be affirmed.