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bate court would have been the same. The bill is fatally defective in the averment of facts sufficient to raise up a trust between the complainants and the respondent in the purchase of the land and to call for an accounting. Nor are the facts stated sufficient to warrant the conclusion of fraud and collusion in the procurement of the decree in the probate court.

The bill in our opinion is wanting in equity, and the court erred in not sustaining the demurrer. The decree of the city court will be reversed, and one will be here rendered sustaining the demurrer.

Reversed and rendered, and remanded.

and is now engaged in the business of transmitting messages between private parties, and between the departments and agencies of the United States government, from Troy to other points in the state of Alabama, and to other points outside, and to other states, and to the United States [here follows the license and penalty attached, as set out above]; further, that the plaintiff refused to pay said license on the ground that the same is illegal, invalid, and arbitrary, excessive, confiscatory, and unjust, whereupon the city of Troy threatened to arrest plaintiff's manager and operator for doing business without a license, and in order to prevent such arrest and imprisonment the company paid such

ANDERSON, SAYRE, and EVANS, JJ., sum of $100, at the same time protesting that

concur.

(164 Ala. 482)

it was not liable, and gave notice that it would bring suit to recover same. It is further found that the lines of the company enter and leave the city over the right of way

CITY OF TROY v. WESTERN UNION TEL- of the Central of Georgia Railway Company

EGRAPH CO.

(Supreme Court of Alabama. Dec. 21, 1909.) LICENSES (8 7*)-OCCUPATION TAX-REASONABLENESS-ORDINANCES.

A city ordinance imposing a license tax for revenue of $100 per year on any telegraph company doing intrastate business in the city cannot be held unreasonable, a manifest abuse of power, and so void, because for the year for which a license is required the company's intrastate business at such city is conducted at a loss.

and the Atlantic Coast Line Company, both of which are public roads, and that the lines within the city of Troy are on and over the public streets and highways of said city, except in one instance. It is further found that the total income of the Troy office from interstate messages-that is, from messages sent from Troy, Ala., to points in other states-for the year 1908 amounted to $2,595.01, and that the total income of messages for the year 1908 from intrastate messages, which includ

[Ed. Note. For other cases, see Licenses, ed messages sent from Troy to other points Cent. Dig. § 15; Dec. Dig. § 7.*]

Appeal from Circuit Court, Pike County; H. A. Pearce, Judge.

Action by the Western Union Telegraph Company against the City of Troy to recover license tax paid under protest. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The facts as found by the judge were that the city of Troy had an ordinance requiring a telegraph company sending messages from the city to any point in the state to pay a license tax of $100, and an ordinance adjudging one guilty of a misdemeanor who failed and refused to pay such tax; further, that the plaintiff was a corporation existing under the laws of the state of New York, and engaged in the business of a telegraph company in the different states of the Union, and in the state of Alabama, and that on June 5, 1867, plaintiff filed with the Postmaster General of the United States its written acceptance of the provisions of the acts of Congress approved the 24th day of July, 1866, title to which is set out, and that it is now and has been acting thereunder, and has assumed the restrictions and burdens imposed, and become entitled to the benefits granted by said acts; further, that for many years, and during the year 1908, and now, it has an office and place of business in the city of Troy, and has been

in the state and money collected at Troy on messages sent from other points in the state to Troy, were $548.28, while the total amount other points in the state was $530, making received for messages sent from Troy to

the total income of said office from business

derived from Troy to points inside the state, $530.24, and that the amount derived for messages received at Troy to be paid for at other points in the state about equaled the amount of messages sent from other parts of the state to be paid for at Troy; further, that the cost of maintaining its offices, and doing business in the city of Troy for the year 1908 were $2,457.72, and that such expenses were necessary for taking care of all of plaintiff's business at Troy, both inter and intra state. It was further found at the plaintiff pays taxes on its lines and other property in the state at a valuation fixed by the state board of assessment at $50 a mile for its poles and | $32 a mile for its wires, and that the instruments and other personal property at Troy are assessed at $140; that it has paid the privilege tax required by the state of $500, together with $1 per mile of its lines, which sum aggregates $4,252; that the office of the company is 11 feet 5 inches wide, and 90 feet long, located at No. 106 East Elm street, and that the population of the city of Troy, estimated January 1, 1908, was approximately 5,500.

Foster, Samford & Carroll, for appellant. | 733, which case also fails to state whether Ray Rushton, for appellee. or not there was any other railroad at the place in question.

SIMPSON, J. The city of Troy, by ordinance, requires any telegraph company doing intrastate business in said city to pay license tax of $100. The appellee paid said tax under protest, to save its agent from criminal prosecution, and sued the city for the money, on the ground that the ordinance is void, by reason of the unreasonableness of the amount of said license. The case was tried by the court without a jury, on an agreed statement of facts, the substance of which will be set out by the reporter in the statement of this case.

The business of the appellee not being of that class calling for police regulation, this license tax must be considered as of that class which is levied for revenue. While it has been held that the uniformity clause of our Constitution, in regard to taxes, does not apply to license taxation, yet that does not mean that there is no limit to the powers of a municipal corporation in levying license taxes. It is laid down as a general proposition that all municipal ordinances must be reasonable, yet a broad discretion must be allowed, and it is difficult to formulate any definite rule as to what is reasonable and what is not. Postal Tel. Cable Co. v. New Hope, 192 U. S. 55, 24 Sup. Ct. 204, 8 L. Ed. 338; Ex parte Byrd, 84 Ala. 18, 4 South. 397, 5 Am. St. Rep. 328; Mayor, etc., of Mobile v. Yuille, 3 Ala. 137, 143, 36 Am. Dec. 441; Atlantic, etc., Tel. Co. v. Philadelphia, 190 U. S. 160, 167, 23 Sup. Ct. 817, 47 L. Ed. 995. Even in regard to the police powers of the state, the Supreme Court of the United States has said: "The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations." Lawton v. Steele, 152 U. S. 137, 14 Sup. Ct. 501 (38 L. Ed. 385). In the case of N., C. & St. L. Ry. v. City of Attalla, 118 Ala. 362, 368, 24 South. 450, 452, this court recognizes the proposition that a license tax levied by a city under authority of law must be reasonable, but holds that "the reasonableness or unreasonableness of a license tax cannot be determined by the extent of the business of a single individual. There may be competition or negligence on his part, or other considerations affecting the extent of the business of complainant." That was a bill to enjoin the enforcement of a city ordinance affixing a penalty for engaging in the business of transporting passengers, etc., without a license. The report of the case does not show what the averments of the bill were as to reasonableness, nor that the complainant was the only person or corporation engaged in the business in said city. The expression quoted from the Attalla Case is quoted with approval in the case of N., C. & St. L. Ry. v.

It is claimed by the appellant that, unless discrimination is shown between persons of the same class, the only limit to the right of taxation by license is that it shall not be prohibitive. It is true that there are expressions in some of the cases which refer to that as the criterion, and yet there are expressions in others which refer to the further qualification that no unreasonable burden shall be placed on any business. In the case of Quartlebaum v. State, 79 Ala. 4, in sustaining a license tax on sewing machine companies, this court said: "Much must be left to the discretion of the Legislature, for exact equality of taxation can never be reached. So long as the burden falls with equal weight upon every member of a given class, * * it is difficult to formulate

an argument that such levy violates any provision of our own or of the federal Constitution."

In the case of City Council of Montgomery v. Kelly, we quoted the passage, above cited, from Lawton v. Steele, 152 U. S. 137, 14 Sup. Ct. 499, 38 L. Ed. 385, and held that an additional burden could not be placed on merchants using trading stamps. 142 Ala. 552, 558, 38 South. 67, 69 (70 L. R. A. 209, 110 Am. St. Rep. 43). In that case we said that liberty "includes the right to pursue any, useful and harmless occupation, and to conduct the business, in the citizen's own way, without being discriminated against either by being prohibited from engaging in it, or by being burdened with discriminative taxation." In the case of Kendrick v. State, 142 Ala. 43, 46, 39 South. 203, 204, in which we sustained a license tax on emigrant agents, recognizing the right of classification, we stated the question to be "whether or not * * the license tax imposed is so excessive and unreasonable as to amount to a prohibition of the business or, in the language of the Supreme Court of United States in Lawton v. Steele, 152 U. S. 137 [14 Sup. Ct. 499, 38 L. Ed. 385], 'under the guise of protecting the public interests, arbitrarily to interfere with private business, or impose unusual and unnecessary restrictions upon a lawful occupation,'" and, as the record did not furnish the data from which the court could say that the license was discriminative beyond the legislative power, it was held good. In the case of Gamble v. City Council of Montgomery, 147 Ala. 682, 684, 39 South. 353, in sustaining the license tax required of trading stamp companies, we said: "In the case at bar we have no evidence that the tax imposed is unreasonable or prohibitive. So far as we know, the defendant could well afford to pay the tax and conduct a lucrative and profitable business."

The Supreme Court of Mississippi, in deciding that an ordinance requiring skating

ness, and at the next term was allowed to amend its plea to the jurisdiction. Held, that there was no error in refusing a motion to strike the plea, because not the one interposed before the justice, because the right to plead the matter set up in it was waived by failure to amend in justice court, and because it was too late, not being made at the term to which appeal was taken.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]

Evans, J., dissenting.

Appeal from City Court of Mobile; O. J. Semmes, Judge.

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fore 6 a. m. was void, because unreasonable, I was granted a continuance for absence of a witsaid, "Into every charter power given a municipality to pass by-laws or ordinances there is an implied restriction that the ordinance shall be reasonable, consistent with the general law, and not destructive of a lawful business," and also quotes from Freund on Police Power, § 63, as follows: "There is implied, in every delegation of power to a municipal corporation, a condition that the power must be exercised reasonably, and that therefore every unreasonable ordinance is ultra vires, and that the court in treating it as null and void merely enforces the legislative will, and principles or policies embodied in it." Also from section 158: "The requirement of reasonableness is so general in its nature that it allows the courts to exThe cause of action was begun in the jusercise a very efficient control over ordinan- tice court, and to the cause of action defendces, without being under the necessity of ant filed a plea to the jurisdiction, setting formulating in each case a principle which up that the cause of action arose in a differwould be a guide for other cases." John- ent precinct from that in which the action son v. Town of Philadelphia, 47 South. 526, was brought, and on the further ground that 527 (19 L. R. A. [N. S.] 637). On the other defendant is a corporation engaged in busihand, "the power to license an occupation ness in said precinct, and has its principal or privilege implies the right to fix the place of business there. Demurrers were inamount of the fee, and the action of a mu- terposed to this plea, and judgment rendernicipal body in fixing a fee will only be dis-ed for plaintiff on the plea of the general isturbed, in case of manifest abuse of that

Assumpsit by Charles Hudgens against the Creola Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

sue.

On appeal from the justice court to the power." Schmidt v. City of Indianapolis, city court, the justice sent up the papers in 16S Ind. 631, 80 N. E. 632, 635, 636, 14 L. R. the case, together with the transcript of his A. (N. S.) 787, 120 Am. St. Rep. 385; Van docket showing the character of the case, the Hook v. City of Selma, 70 Ala. 361, 365, 45 fact that the defendant pleads to the jurisAm. Rep. 85; Miller v. Mayor, etc., of Bir- diction, that the plaintiff demurred thereto, mingham, 151 Ala. 469, 471, 44 South. 388, and that the demurrers were sustained, to125 Am. St. Rep. 31; Mayor, etc., of Birming-gether with a copy of the judgment. After ham v. Goldstein, 151 Ala. 473, 477, 44 South. 113, 12 L. R. A. (N. S.) 568, 125 Am. St. Rep. 33.

While the business of 1908 shows that the telegraph company at Troy was run at a loss, in so far as intrastate business is concerned, yet it is not shown that such is a proper criterion as to the business of a telegraph company from year to year in that Moreover, in the estimate of expenses,

city.

a proportionate part of the office expenses is included, which would have to be paid at any rate, whether any intrastate business was done or not; and we cannot say that the fixing of this license tax was a manifest abuse of power.

The judgment of the court is reversed, and

the cause remanded. All the Justices concur.

(164 Ala. 561)

HUDGENS v. CREOLA LUMBER CO.
(Supreme Court of Alabama. Dec. 21, 1909.)
JUSTICES OF THE PEACE (§ 174*) — APPEAL –
PLEAS TO JURISDICTION.

Demurrer was sustained to defendant's plea to the jurisdiction in justice court, judgment was rendered against it on its subsequent plea of the general issue, it appealed to the city court, where at the first term it moved for and

the appeal, so far as it appears from the record, and after one term of the court had passed, to which this appeal was taken, the defendant was permitted to amend its plea to the jurisdiction, which was allowed. The plaintiff then moved the court to strike the plea from the file, because it was not the same plea interposed before the justice of the peace, and because the defendant waived the right to plead the matter set up in said plea by

failing to amend his plea in abatement before the justice, so as to make the same a proper plea, because the plea came too late, and because the defendant appeared at the last term of the court and moved for a continuance on

account of the absence of a witness, without

renewing in any manner or filing a plea in

abatement. This motion was overruled.

Frederick G. Bromberg, for appellant. Inge & McCorvey, for appellee.

SAYRE, J. DOWDELL, C. J., and McCLELLAN, J., concur with the writer that there is no error shown by the record. On the trial before the justice of the peace the defendant filed a formal plea to the jurisdiction. Demurrer being sustained, it was driven to a plea in bar. The judgment sustaining the demurrer became merged in the final judgment against the defendant, and was supersed

SIMPSON and MAYFIELD, JJ., concur in these views.

ed when that judgment was superseded by the of discretion in allowing the plea it was inappeal. On the removal of the cause by appeal | cumbent upon the appellant to affirmatively the justice of the peace sent to the law and show that he had acted on the defendant's equity court the original papers in the cause action in abandoning his plea. and a statement of the case and the judgment rendered by him, as he was by statute required to do. In this state of the case a judgment by default could not have been properly passed by the court to which the appeal was tak- EVANS, J. (dissenting). After a very careen. The effect of the proceedings was to leave ful consideration of this case, I find myself the plea in abatement pending in the cause, unable to agree with either the opinion of with the right in defendant to amend it, or Justice SAYRE or that of Justice ANDERto file a new plea asserting the same defense | SON; and, owing to the fact that a majority in improved form, and this right would con- of the court does not agree upon either opintinue until the defendant by its course indi-ion as the law, I feel constrained to give my cated a purpose to forego the plea in abate- reasons of dissent from both views. A furment. True, if a formal plea in bar was filed ther reason why I think it proper is that a in the primary court, it also was pending at majority of the court disagree with each of the same time; but that fact cannot be per- these opinions, and, if I understand it correctmitted to operate to the prejudice of the plea ly, a majority of the court agree with me in in abatement, for the reason that the ruling dissenting from each opinion. If I am misof the trial court against the latter plea drove taken in that, it at least seems true that a the defendant to the filing of the former. As majority of the court do not concur in either the case was in the law and equity court, no opinion, while all but myself agree that the new pleas in bar being filed, nor any action judgment of the lower court should be aftaken by the defendant which amounted to firmed. I dissent from the opinion by Jusan abandonment of its plea in abatement, the tice SAYRE for two reasons: cause stood for trial on pleas in abatement and bar in their proper order. The trial court might properly have required the plea in abatement to have been disposed of at the first term. Not having done so, and nothing being shown which amounted to a waiver of the defense, we are of opinion that there was no error in allowing the plea to be amended and the same defense interposed in better shape at the next term. Affirmed.

DOWDELL, C. J., and SIMPSON, ANDERSON, MCCLELLAN, and MAYFIELD, JJ., concur. EVANS, J., dissents.

First. I am of opinion that the appeal from the justice of the peace court did not bring up the pleas that may have been filed in justice of the peace court into the Mobile city court; that such is not the effect or purpose of the statute, which is as follows: "When an appeal is taken, the justice must return all of the original papers of the cause, together with a statement signed by him, of the case and the judgment rendered by him, to the clerk of the court to which the appeal was taken, within ten days after the taking of the appeal." I do not understand original papers to include pleas. Pleas are not origi

nal papers. Original papers are those by which the suit originates, and, in this case, was the summons, together with the indorsement of the cause of action, and this might be in form a regular complaint. As defined in Cyc. pp. 1527, 1528, "original" is, "an adjective, pertaining to the beginning or origin, the first or primitive form of a thing; per

ANDERSON, J. I concur in the affirmance of this case, but do not wish to commit myself fully to the idea that the plea to the jurisdiction in the justice court continued to exist in the circuit court without being refiled. I think that the trial court, however, has a discretion in the allowance of pleas in abate-taining to the origin or beginning; initial: ment after the first term (rule 12, p. 1520, of the Code of 1907), except in the two instances as set out in the case of Hawkins v. Armour Co., 105 Ala. 545, 17 South. 16, that the defendant had not pleaded to the merits, or that the plaintiff had not acted on the defendant's waiver of his plea to the jurisdiction. It is not contended that the defendant waived his right to plead to the jurisdiction by pleading to the merits, but that he waived his special plea by getting the case continued at the first term in order to get a witness on the merits. This may have been an indication that he had or would waive his special plea; but there is nothing in the record to show that the plaintiff had acted to his prejudice upon the action of the defendant, and

primal; first in order; preceding all others." The appeal is simply to bring up the cause of action for trial de novo in the higher court. The appeal bond, showing the parties below and reciting the judgment there rendered, was of itself sufficient to give the Mobile city court jurisdiction and to enable it to proceed with the cause. Hardee v. Abraham, 133 Ala. 343, 32 South. 595; Larcher v. Scott, 2 Ala. 40; McAlpin v. Pool, Minor, 316; S. & N. R. R. Co. v. Pilgreen, 62 Ala. 305. The purpose of the law, as it seems to me, in the case of appeals from justice courts, is to treat the case, when it reaches the higher court, just as it would have been if it could and should have been brought originally in that court, so far as the merits of the case

1

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tiff that he expected at the next term to go to trial upon the plea in bar. If we are to decide that the appeal brings up all the pleadings in the justice court, both in abatement and in bar, what act of defendant could constitute a waiver of his plea in abatement, if asking for and obtaining a general continuance, in order that he might get a witness upon his plea in bar, does not have that effect? If that does not show his election to proceed upon his plea in bar, I cannot conceive of what could.

592, 14 South. 849; Code 1907, § 4720. The | waived it? The plea in bar, upon that theory appeal does not, in my opinion, ex proprio | of the law, was already on file, and that act vigore bring up and file the pleas and subse- on his part would clearly indicate to plainquent pleadings had in the justice court. These might have been merely verbal there, and, if in writing, there is no way provided by which the clerk in the higher court could know what pleas and subsequent pleadings were really filed and insisted on in the justice court. Not so with the original papers, which must be issued by the justice of the peace, when taken in connection with the appeal bond and its recitals. Before the upper court can know what defenses were made in the lower court, parol proof thereof must be made. Before any defense, not upon the I dissent, also, from the opinion by Justice merits, can be made in the upper court, it ANDERSON. In his opinion Justice ANmust be shown by proper proof, or admitted | DERSON relies upon the authority of the by the other party, that such defense was case of Hawkins v. Armour & Co., 105 Ala. made in the lower court. The justice of the 545, 17 South. 16. It will be noted, on pepeace court is not a court of record, and therusal of opinion in said case, that Justice law does not require the justice of the peace to certify what defenses were insisted on in the trial before him, and there is no way provided by law, except parol proof, to show what defenses were there insisted on. Even if papers, purporting to be pleas, are sent up by the justice of the peace, there is no way provided by which the upper court can know that they were pleas used in the lower court, unless parol proof is made thereof.

Head relied for authority upon the case of Vaughan v. Robinson, 22 Ala. 519. After reading with great care all of our decisions upon the particular subject under consideration, it appears to me that the opinion by Chief Justice Chilton in said case of Vaughan v. Robinson is the most carefully considered of any that has fallen under my observation, and that it has never been overruled by any subsequent decision, so far as the subject under consideration in each of the subsequent opinions are concerned. There is occasionally a dictum which, on the surface, might appear otherwise; but on careful con- . sideration, taking the facts in the particular case, it will be found to harmonize with said case of Vaughan v. Robinson.

In said case of Vaughan v. Robinson, at page 522 of 22 Ala., in speaking of the case of Cobb v. Miller, 9 Ala. 499, Chief Justice Chilton says: "This decision merely shows that the twelfth rule of practice is not so imperative as to require a literal compliance in all cases, and that under some circumstances pleas in abatement may be allowed, although it does not appear from the indorsement of the clerk they were filed within the time allowed for pleading'; that a departure may sometimes become entirely prop

Second. But, if "original papers," as used in section 4716 of the Code of 1907, means all the papers, and the word "original" has no limiting effect, and the appeal ex proprio | vigore files in the upper court all the papers that may happen to come to the hands of the clerk of the upper court, purporting to be sent up by the justice of the peace, which must be considered by the upper court in the order of their filing in the lower court, still we are of opinion that the Mobile city court should have treated the plea to the jurisdiction of the justice of the peace court as waived by defendant, when, at the first term of the Mobile city court, the case was by law standing for trial, and the defendant moved for and obtained a continuance, in order to get a witness upon the merits of the case; the plaintiff having filed his complaint, and not being in any respect in de-er by the act or omission of the plaintiffs." fault. If all the pleas came up from the justice court into the Mobile city court, to be acted upon by the Mobile city court in the order in which they were filed below (and, as shown by the bill of exceptions, the plea of the general issue was filed in the justice court), did not the defendant waive his plea in abatement, when, at the first term of the Mobile city court, after the appeal was taken and perfected, and the cause was standing for trial, and the plaintiff had filed his complaint, he asked for and obtained a continuance of the case till the next regular term of the court, in order, as stated by him, that he might get a witness upon the merits of the case? If that did not waive

Again, on page 523 of 22 Ala., in speaking of the common law, he says: "By the ancient rules of pleading the defendant could not plead a dilatory plea after a general imparlance," etc. "The reason why the defendant was required to be so prompt in putting in such pleas was that they merely worked delay, did not affect the merits of the controversy, and were consequently required to be pleaded as early as practicable, so that the plaintiff might bring a proper suit, or resort to the proper forum for redress. * * * The same strictness does not obtain with us; but the rule applies, and is generally pretty rigidly adhered to, that pleas in abatement must be filed at the ap

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