Southern Express Co. v. Mayor of Mobile , 49 Ala. 404 ( 1873 )

PETERS, C. J.

— This case presents, in effect, the same point that was determined by the judgment of this court in Osborne v. Mayor, Aldermen, &c., of Mobile, 44 Ala. 493. It is presented in a different form, but the question of law is the same. Here it is presented by bill in chancery. The purpose of the bill is to enjoin the corporation, consisting of the mayor, aldermen, and common council of the city of Mobile, from enforcing its ordinance which requires the payment of an annual license of $500 by “ every express conqpany, or railroad company, who shall do business in the city of Mobile, and whose business extends beyond the limits of the State.” The bill sets up the objection, that this ordinance is void because it conflicts with the Constitution of the United States. If this were so, the tax levied under its authority would be void also. Where the authority under which a tax is levied is utterly void, in a proper case, the powers of a court of equity will intervene to enjoin its collection. Tallassee Manufacturing Company v. Spigener, at the last term, and cases there cited. Here, the whole equity of the bill is denied in the answer, and the authority under which the tax was sought to be collected was not void. Its validity was affirmed by this court in the case first above cited of Osborne v. Mayor, &c., of Mobile, 44 Ala. 493. From this decision we feel unwilling to depart. In this view of the case, the judgment of the court below is correct. It is therefore affirmed, with costs.