| Ala. Ct. App. | Jun 19, 1912
Lead Opinion
The appellant, as president of the Montgomery Bank & Trust Company, a banking institution under the laws of the state, was tried and convicted in the recorder’s court of the city of Montgomery for the violation of an ordinance of said city imposing
The case was tried on an agreed statement of facts, and the sole contention is with respect to the validity of the ordinance on which the defendant was tried and convicted. The ordinance in question levies a higher license tax, based on the capital stock, surplus and undivided profits on state banking institutions than is authorized by section 6 of an act of the Legislature approved March 2, 1911, entitled “An Act to create a banking department of the State of Alabama and through this department to regulate, examine and supervise banks and banking, and to punish certain prohibited acts relating thereto.” — Acts 1911, p-. 50 et seq.
The question of the constitutionality of section 6 of this act creating a banking department was by the judges of this court certified to-the Supreme Court under section 1 of an act approved April 18th, 1911 (Acts 1911, p. 449), for determination by that court. It is held by the Supreme Court on the certification of this question (Lovejoy v. Montgomery, Ala. Sup. Ct., present term, MS.) that section 6 of the act under consideration (Acts 1911, pp. 54, 55, 56) is violative of section 45 of the Constitution of the State of Alabama.
This section (6) being unconstitutional and void, and the ordinance and conviction under it being attacked alone upon the ground of the restrictions placed upon the municipality by that section of the act creating a banking department of the State, it follows that the judgment of the trial court will be affirmed.
Affirmed.
Rehearing
The affirmance of the judgment appealed from in this case was grounded on an opinion rendered by the Supreme Court in response to a certification by this court to that court of the constitutional question involved (as will fully appear from the foregoing opinion), and when an application for a rehearing was filed here, our holding being based entirely on the opinion of the Supreme Court, the application ivas referred to that court.
Upon a consideration of the application for a rehearing, the Supreme Court has withdrawn its former opinion holding section 6 of the act approved March 2, 1911 (Acts 1911, p. 54), unconstitutional and void as violative of section 45 of the Constitution of the state, and has now reached a contrary conclusion, and holds in the opinion substituted for the first opinion that said section 6 of the act does not violate section 45 of the Constitution, and that the same is valid. — Lovejoy v. City of Montgomery, Ala. Sup. Court., present term, MS.
Predicating our action on the last ruling of the Supreme Court, the application for a rehearing will be granted, the former order of affirmance set aside, and as the sole question presented by the record is finally disposed of, and the judgment of conviction rendered by the city court under the ruling made by the Supreme Court being unauthorized, it is set aside, and an order will be entered here discharging the defendant.
Reversed and rendered.