*1 .143 BRICKEN, ed, plainly appears Presiding Judge. error was it that no any such committed with reference appeal improvidently The in this case was charge. taken, dismissed, no must be for that judgment sufficient order has been made tried; properly and there This appeal. in the circuit court to sustain an are no record. errors only 'judgment The record found judgment is affirmed. sustaining defend- is an order of the court Affirmed. complaint. “A plaintiff's demurrer to ant's com- judgment sustaining demurrer to the plaint from which judgment is not a final Spears, 200 appeal will lie.” Wise v. an 869; 695, v. Southern Ala. So. Gibbs 76 860; 506, Ala. 78 Express Company, 201 So. Jones, v. Ala. 288. Eslava 179 So. 920 Appeal dismissed. OF v. CITY ROANOKE FAIN. 5 Div. 34. Appeals Court of

March So. 781 BIRMING-

HOME CITY OF INS. CO. v. HAM. 6 Div. 189. Appeals of Alabama. 1, 1938. Feb.

Rehearing Denied Hooton, Roanoke, appel- for Paul J.

lant. Roanoke, Parker, appellee.

E. B. *2 Coleman, Spain, Davies, Stewart & appellant. ap- of industrial insurance written

pellant City Birmingham. in the paid City This tax Bir- mingham under an ordinance levied *3 company a tax on each fire insurance of 2% cent, per premiums, gross of the less re- premiums, during year turned received the immediately preceding policies on issued Copy during preceding year, that of etc. foregoing the ordinance conforms to the statement. Part of the claimed for tax is also sums Mullins, and Geo. Willis, Clarence H. J. paid the benefit of Fireman’s the Pen- .for appellee. Stuart, Birmingham, for of all

R. provisions sion and Relief Fund under the of General Laws the paid day taxes were on Said the 30th January, of payment A for claim the return of the City was filed with the of v law, by within the time allowed and the City Birmingham repay of declined to said sum. Appellee complaint, demurred to the and upon the demurrers were sustained the ground plaintiff that under the law the required pay City was to said to taxes the Birmingham City of if Birmingham of the population 100,000, exceeded the of and only exempted that the statute of Alabama municipal taxa- industrial insurance population tion having cities of less a 100,000. than ruling On account the adverse of the of take, court, plaintiff compelled the was to court, by allowed the a nonsuit was appeal prosecuted and is from this the ruling of court. the trial above, foregoing, and is a statement by made of the case from the record as by and acceded to counsel the appellee’s counsel in his brief. question as to the This raises the one in section 2156 effect of the last sentence fol- which reads of the Code of as tax, privilege or lows: “No license or doing charge, privilege for the other of business, by any imposed munici- be shall pal corporation fire insurance on SAMFÓRD, Judge. company industrial insurance.” writing This submitted to the court appellee’s by counsel to upon are asked complaint, count 5 of the as amended. We quotation to cities and plaintiff sought foregoing In count the this to recover limit 100,000 having than municipalities less $281.12, of the defendant the sum of the question, we have On paid by department population. amount the industrial briefs interest the exhaustive with Company read Home Insurance the appellant by by and the the City privi- both Birmingham a license filed or for rules the established 1936; but under year appellee, lege tax for the tax said taxes Supreme Court of this by down the paid upon as laid being premiums the amount of cent, history, state, By we throughout per its entire whatever name the 1% of the for discussion tax on companies, see a no occasion insurance for the benefit by Fund, cited counsel. various decisions of Fireman’s Pension and Relief may called, be it is none the less a license 2156 of the Code Section tax within meaning the of the law. The first supra, unambiguous. plain and is limitation part is a clear section of the is, therefore, It clear that to us municipalities state of upon the all it is immaterial whether the tax popula 100,000 having less than Alabama Fireman’s Pension Relief a Fund is preceding state last according tion direct Legislature enactment following makes census, clause Legislature merely whether permits insurance exemption in favor of fire clear *4 levy By the town to express such a tax. in insurance companies writing industrial provisions of Legisla the 1935 Act of the state, municipalities in of the all of the ture, p. 852 seq., et tax the for the benefit may municipalities as have cluding such of the Fireman’s and Pension Relief Fund 100,000 population. in more than part is held a to- be as of tax the treated just for construc is no room There by municipal corporation, a levied and intention from which the tion in a statute permitted by is which the General Revenue clearly drawn Legislature can be so of the 1935, p. seq. of Act 552 et uncertainty of its as to eliminate It by is also now contended the meaning. appellee that section 2156 of the is Code many holding to this cases are so There reality, in not, part Code, of a the the unnecessary to seem would to be view it reason that it ap was not enacted and authority should authority, but if be cite proved 1, 1923, 1923, until October Acts Alabama required is made to 18 reference 748, p. adopting whereas the act Code the Statutes, Digest, head of ^^O the under approved 17, August 1923, 1923, Acts seq. et p. 127. views; above For account of the and on Counsel, however, give failed to effect to (cid:127)is lower court re- judgment the of the part act, that of supra, the pro- which cause is remanded. versed and the as vides follows: “All present Acts of the remanded. Reversed and session of Legislature, passed the on and July 10th., 1923, after gen- are aof Rehearing. On nature, eral incorporated shall be in the money paid Appellee insists that the now appropriate place Code at the with refer- and of Fireman’s Pension for the benefit subject-matter, its ence to and become and by should not be recovered Relief Fund published be part Code, as a of the so appellant. every that general a of statute of nature per of tax With reference to this 1% State, in at the time the of force Treasurer, Cobbs, City cent., in this court publication Code, of the shall incor- be York, Ala. 18 v. Co. of New Home Ins. porated therein.” Section 4. 627, 629, App. 206, and So. reaffirmed 91 Whether, therefore, section 2156 of the Company Home Ins. v. in the of originated Committee, Code in the Code 165, 491, Ala.App. had Cobbs, 20 103 So. or whether it was a codification of that say: “The tax or license levied this to part 1923, of approved 1, the act October seq.) by (page et as 1915 898 the act of is of no moment. The section is still 'by (pages act of 1919 111— amended the Fite, In re 152 law. 228 Ala. So. 246. by Legislature for 116) is a levied the tax foregoing, addition In this sec- municipalities the various the benefit of (2156) brought tion is forward and con- they be- falling within the class to which in tained the General Revenue Act of Legislature had just as if long and is the 348, schedule 160.17. See General Acts § levy an of license and authorized the Alabama, 1935, p. of passed carrying it into been ordinance had levy does not effect, long escape as the and so We see no from the con municipal exceed, by or direct ordinance clusion which we reached the original by municipality levy opinion promulgated use of the for the in this case. All 'Of by the Gen. Legislature, the amount fixed' the statutes relative to the of licensing 1919,p. 414) (Laws Schedule companies municipalities Rev.Act 1919 fire insurance b, is in the two general, there no conflict are be pari subd. must considered in materia, statutes, and, considered, requiring striking down of the so .whe'n plain prohibit one the other.” terms the statute1 of all 147 Carmichael, Atty. Gen., levying and Silas C. A. A. the state municipalities III, Atty. Gen., Garrett, for the State. appellant. Asst. collecting on this license is rehearing over- application for ruled.

Overruled.

RICE, Judge. Appellant was of the convicted offense 127 So. unlawfully distilling liquor alcoholic —' v. STATE. SMITH whisky. Div. just is It of those cases.” “another We worthy nothing see of discussion. Appeals Alabama. strenuously argue But counsel 22, 1938. judgment that should be be- reversed *5 appellant’s bearing witnesses cause —one solicitor, Spain closing his name the argument —the language: jury used this very Spain name is a familiar name “That ' to me.” motion, court, excluded- on which, jury; quoted statement hold, think, more was even than we rightfully Anderson v. appellant could ask. Certainly, State, 209 Ala. 95 So. 171. “declare we think motion to without error. overruled mistrial” nowhere, appears, erroneous There court, judg- ruling or action ment is affirmed.

Affirmed.

180 So.

FRENCH v. STATE. Div. 241. ap- Longshore, L.W. pellant. Appeals Feb.

Rehearing Denied