Gaston v. O'Neal , 145 Ala. 484 ( 1906 )

WEAKLEY, C. J.

Assuming without deciding that the exemption from county license claimed by appellee under the charter of the city of Montgomery was valid and- in force at the time of the enactment of the statute of March 4, 1903, entitled “An act to better provide for the revenue of the state” (Gen. Acts 1903, p. 184), the majority of the court are of opinion that such exemption existed under a “special lav,” within the meaning of the general revenue law above mentioned, and that such special law, being inconsistent with a provision of said revenue law, was by the latter expressly repealed by virtue of its last clause (page 232), which declared that “all laws and parts of laws, both general and special, inconsistent with the provisions-of this'act, are hereby repealed.” It is contend (Ml that, since the Constitution of 1901 defines both local laws and special laws, it must-be supposed the Legislature, had the difference between them in mind, and that'by using the term “special laws” in the repealing clause of the revenue act of 1903 it meant to exclude from repeal any local law; the argue ment further being that the charter of Montgomery exempting liquor dealers within that city from county license tax is a local law merely. We cannot agree to this contention. The definition of a general law, a local law, and a special or private law found in -section 110 of the Constitution of 1901 merely states the meaning of those terms as they are employed in the article of the Constitution in which the section is located, and we are not therefore precluded from holding that upon a proper construction of the revenue act the Legislature meant by “special laws” any laws that were not general and which were inconsistent with the uniform plan for county license taxation the general revenue law of 1903 was de-, signed to adopt. Although the charter of Montgomery was local, in the sense' that it applied' to a municipality, the exemption therein secured to persons taking out a privilege license from the city was, in a broad and just sense, special and exceptional, and hence inconsistent with that provision of the revenue law of 1903, which declared: “The court of county commissioners of each county, except in case's otherwise provided, may at any regular or special term, add to the taxes specified in this section such amounts not exceeding fifty per cent, of such taxes for county purposes as in their judgment inay be necessary.”

The. use in the repealing clause, of the statute of the term “all laws, general and special, in conflict with or inconsistent with,” etc., is not unusual in our legislation; and in decisions of this court the terms “local law” and “special law” have been used interchangeably.— Maxwell v. State, 89 Ala. 150, 7 South. 824 ; Holt v. Mayor and Aldermen of Birmingham, 111 Ala. 369, 19 South. 735. Mr. Justice Tyson in his opinion has shown that the words “except in cases otherwise provided” in the paragrapth above quoted do not operate to save the exemption claimed by appellee, and we concur in his views on that proposition. We are not of opinion that the proviso added to section 4123 of the Code by the act. of September 30, 1903 (General Acts 1903, p. 298, § 4), in any event operated to revitalize and restore the exemption in the Montgomery charter, which we have declared the revenue law of March 4. 1903 (Gen. Acts 1903, p. 184), expressly repealed, and hence we do not need to inquire whether the act of September 30, 1903, was or was not constitutionally enacted. The judgment of the city court awarding the mandamus was erroneous.

At the November term, 1903, a judgment was rendered in this case reversing the judgment of the city court and remanding the cause, without any written opinion expressing the views of the majority. Since then the cause has been pending on application by appellee for a rehearing. The opinion expresses the views entertained by the majority of the court as at present constituted, after consideration of the rehearing application, and it results that same must be overruled.

Reversed and remanded. Application for rehearing overruled.

Haralson, Dowdell, and Denson, JJ., concur.