Southern Car & Foundry Co. v. Calhoun County

141 Ala. 250 | Ala. | 1904

SHARPE, J.

In this action Calhoun county claims as for license taxes due from defendant for the years 1899, 1900 and 1901, respectively, and also as for fees earned by the county tax commissioners in reporting those taxes unpaid. The complaint was demurred to but not on any tenable ground, and each count thereof stated a cause of action. By section 4123 of the Code and also by the act of March 5th, 1901 (Acts 1900-01, p. 2635), the court of county commissioners were authorized to add to state license taxes an amount for county purposes, not exceeding fifty per cent, of such state taxes. The act of February 21, Í899, (Acts 1898-99, p. 195), charged county tax commissioners with the duty of reporting delinquencies in the payment of license taxes, and provided that for perfornmg that duty “the commissioners are entitled for each case brought before the probate judges, to be paid by the delinquent in addition to the license, ten per cent, on the amount of the.license so collected from each delinquent,” and “that the county tax commissioners shall be entitled to receive the fees provided by the act from the tax collector and the judge of probate giving duplicate receipts therefor.” These provisions read in connection with the remainder of the last mentioned act sufficiently indicate that the right of collecting and consequently of suing for fees earned by a commissioner is primarily in the county entitled to collect the tax.

There was no misjoinder1 of counts in the complaint and this is true regardless of whether the tax commissioner's fees are in the nature of costs or of a penalty. It was long ago held by this court that debt was a form of action appropriate for recovery of a statutory penalty.- — Spence v. Thompson, 11 Ala. 746.

The statute empowering “the court of county commissioners of each county” to levy the county license taxes does net mean that each county in the State, or each county where the licensed business is done, may add to the tax required by the State for a particular license, but is construed as permitting the county tax in each county wherein such particular license is issued and in that county only. — Southern Ry. Co. v. Mitchell, (Ala.) 37 South 85.

Upon this consideration it must be held that the third plea was good as against any ground of demurrer interposed thereto; and also that the fact appearing in the agreed statement of evidence that defendant had in Et-owah conntv and in each of the years 1900, and 1901, taken out a license and paid therefor $75.00 to- the State, and $37.50 to- the county of Etowah, shows the county of Calhoun was without right to- recover taxes or commissioner's fees claimed on account- of either of those years, and that the court erred in allowing those claims in its judgment. If on such account anything is due from defendant, the right to recover the same is in the county of Etowah.

The evidence showed no defense as against plaintiff’s claims for taxes and fees accruing on taxes for 1899. The orders of the commissioner's court introduced to show levies of county taxes made by that court were each sufficient to create such levies and were properly admitted in evidence.

That defendant could not avail itself of licenses issued to> other corporations whose property was bought by defendant. was adjudged in Southern Car & Foundry Co. v. The State, 133 Ala. 624. Since the order for the production of defendant’s books’ was never enforced or complied with, it could not have been injurious.

Reversed and remanded.