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(102 80.) existing circumstances only, or so constitut- , 150 Ala. 74, 43 So. 482. It was there de ed and narrowed as to preclude proper ad-clared that: ditions to the numbers included within the

"It is inherent in the power granted to the class; and (d) must be based upon substan- court (commissioners' court] that it should tial distinctions which make one class differ- determine, in keeping with the object and purent from another. S. & N. A. R. Co. v. Morris, pose of the statutory provision, what wagons 65 Ala. 193; Randolph v. Builders' & Paint hauling what character of the material men

The weight of the ers' Sup. Co., 106 Ala. 501, 17 So. 727; City tion should be licensable. of Cullman v. Arndt, 125 Ala. 581, 28 so. burden borne by the vehicle was the considera

tion giving rise to the conferring of the power 70; Board of Commissioners of Mobile V.

to license and the order of the court is clearOrr, 181 Ala. 308, 61 So. 920, 45 L. R. A. ly within the grant.” (Italics supplied.) (N. S.) 575; State v. Goldstein, 207 Ala. 569, 93 So. 308. See, also, Maercker v. City of The expression in the Kennamer Case, Milwaukee, 151 Wis. 324, 139 N. W. 199, "wagons hauling what character of the maL. R. A. 1915F, 1196, Ann. Cas. 1914B, 199; terial mentioned" (italics supplied), meant, Johnson v. St. Paul, etc., Co., 43 Minn. 222, under the facts, “logs," "lumber,” “timber," 45 N. W. 156, 8 L. R. A. 419; North Carolina other than "firewood,” and was made the v. Williams, 158 N. C. 610, 73 S. E. 1000, basis of classification in said ordinance; 40 L. R. A. (N. S.; 279, and notes; Cooley's that is, the contents of the wagon, the mateConst. Lim. (6th Ed.) p. 479 et seq.

rial hauled, and not the unusual burden beThe ordinance of the court of county com- | ing imposed, or commerce or business conmissioners of Greene county is set out in the ducted, upon and in the public highway. The indictment. It is as follows:

general observation should be made that the "It is therefore ordered by the court of basis of a proper classification may be found county commissioners of Greene county, Ala- | in an extraordinary use of a public highbama, that, for the purpose of maintaining the way-such as the hauling thereon of offal or public roads, bridges, and ferries of the county, refuse offensive to the senses or tending to the following license taxes be, and the same affect the health of the citizen, the conduct hereby are, imposed upon the owners of the following class of vehicles which are used in of circus parades, the prosecution of private hauling, transporting, or moving staves, stave business, as hauling for hire peddlers, jitbolts, or billets, stave timber, spokes, spoke neys, busses, automobiles for hire, or the billets, or spoke timber, saw logs, or any other imposition of unusual burdens upon public character of logs or timber or lumber upon roads and bridges-and in the substantial the public roads of Greene county, Alabama, to and differing character of the vehicles emwit:

“For the year 1920 and annually thereafter ployed as to weight, horse power, whether until further ordered by the court:

gas or electric, trucks or automobiles, and “For each wagon drawn by not more than the like. So, also, the basis for a classificatwo animals, $7.50.

tion for the purpose of raising revenue for “For each wagon drawn by more than two road purposes may be found in a general and not more than three animals, $10.

vehicle tax to the exclusion of other passen"For each wagon drawn by more than three gers traversing the public highway. Howand not more than four animals, $15. "For each traction engine, or steam engine ever, an administration of a municipal or

dinance which would tax one vehicle and of any kind (not including automobiles or motor cars), used in drawing or pulling one or exempt another, by reason only of the charmore wagons, cars, vehicles, or trailers, $25. acter of commodity hauled, is a tax imposed

For each wagon, car, or trailer, or other ve on the mere hauling of the particular comhicle drawn by or pulled by an automobile, mo-modity, and the imposition of such a tax tor car, motor truck, traction engine, or steam is arbitrary and unreasonable. engine of any kind, $15. "It is further ordered by the court that the

The Court of Appeals rested its decision in owner of each of said vehicles shall pay to the Conecuh County v. Simmons, 19 Ala. App. judge of probate of Greene county, Alabama, 65, 95 So. 488, and in this case, upon Kenna. the license tax due by him hereunder, and pro

mer v. State, 150 Ala. 74, 43 So. 482. It cure a license for the use of such vehicles, should be said that the cases of Kennamer v. upon the public roads of said county before the State, supra, and Hill v Moody, 207 Ala. same is used for any of said purposes, upon 325, 93 So. 422, and other cases having apthe public roads of Greene county, Alabama, which license shall authorize the owner of such plication recognize that, under due legislavehicle to use the same for hauling, transport

tive authority, counties may raise revenues ing, or moving staves, stave bolts, or billets, for road improvement through the direct stave timber, spokes,' spoke bolts, or billets, method of license fees which are reasonable or spoke timber, saw logs, or any kind and uniform, imposed upon vehicles using character of logs or timber or lumber, upon the public highways (Adams, Tax Col., v. the public roads of Greene county, Alabama, Southern Ry Co., 167 Ala 383, 52 So. 439); during the, year the same is issued, and not otherwise."

may prescribe proper rules, regulations, or

conditions for the use, or permit for the con. That ordinance is within the decision of duct, of commercial or business enterprises this court rendered in Kennamer v. State, on such highway (Mills v. Comm. Court, 204

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ala, 40, 85 So. 564;. MeLendon v. Boyles being based upon a substantial distinction Transit Co., 210 Ala. 529, 98 So, 581; Giglio which makes one class different from anv. Barrett, 207 Ala. 278, 92 So. 668; Harris other. In either event, the classification v. Barrett, 206 Ala. 263, 89 So. 717; City of would not bring within the influence of the Montgomery v. Orpheum Taxi Co., 203 Ala. ordinance containing it all who are under 103, 82 So. 117); and may exercise judg- the same conditions-all who, in like manment and discretion in the building, protec- ner, subject the public highway to wear and tion, improvement, maintenance, etc., of such tear, and who receive like benefit from its public thoroughfare (O’Rear v. Sartain, 193 use in the prosecution of a private business Ala. 275, 69 So, 554, Ann. Cas. 1918B, 593; therein. As indicated at the outset, if the Board of Revenue v. Merrill, 193 Ala. 521, classification for the tax bad been rested 68 So. 971; Ex parte City of Birmingham, upon the occupation or vocation or business 201 Ala. 641, 79 So, 113). Such exercise of using the public highway, if the tax and the police power of government is always conditions imposed be reasonable, it could subject to the guaranties contained in fed- have been sustained, under the Fourteenth eral and state Constitutions. Yick Wo v. Amendment to the Constitution of the United Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. States. And, in the declaration and descripEd. 220; Board of Commissioners of Mobile tion of the business being conducted on or v. Orr, 181 Ala. 308, 61 So. 920, 45 L. R. A. along the highway, the contents of the ve(N. S.) 575.

hicle may be employed and adverted to as It is the judgment of the writer that, un- describing the business being conducted; as der the facts of the Kennamer Case, supra, hauling fuel oil or gasoline by truck along the classification employed in the ordinance the public highway for sale, etc. In the there considered was arbitrary and unjust-Greene county ordinance, being construed and based, as it was, solely upon the character tested under the Constitution and rules obof material being hauled. It took no account taining, the stated contents of the vehicle of the vehicle so used upon the public high- and the character of the article or material way, or of the horse power employed, the being hauled have not been employed as de. weight, or reasonable probability of wear and scriptive of a business being conducted on tear to the highway, or whether or not the the public highway, but made the basis for hauling was done for hire or in the prose-classification and tax for the hauling, based cution of a material part of a private busi- solely on an arbitrary description of conness or occupation on the highway, other than tents of the vehicle. it applied to the contents of the vehicle.

Under the organic law, as given application These things and conditions may be made by the federal and state courts, the classifithe basis of a reasonable and uniform classi- cation was unreasonable and discriminatory. fication.

Board of Commissioners of Mobile v. Orr, The court agrees with the stated tests re- supra ; Yick Wo v. Hopkins, supra. The orquired of such classifications, but does not dinance pertains to the use of the public agree with the application that would con- highway by private individuals in the prosedemn the Greene county ordinance, The cution of their daily businesses. Authorities writer thinks that by the terms of the ordi- collected in State v. Goldstein, 207 Ala. 569 nance its administration can but be arbitrary 573, 575, 578–585, 93 So. 308. and unjust. For illustration: If, in the ad

However this may appear to the writer, ministration of the ordinance, a timber or the other justices are of opinion that the ormillman is taxed on his vehicles because he dinance may be construed so as to save it hauls therein, over the public highway, from the imputation of unconstitutionality, staves or spokes, to serve his own purposes under the usual presumptions obtaining. It or for manufacture (not for hire), and if one

is settled in this state: (1) That constitutionof another vocation hauls staves or spokes al provisions, designed for the “security o! over the public highway (not for hire), and the elementary rights of life, liberty, and be not so taxed, that administration of the property, should be construed liberally in faordinance would not be uniform as to all who vor of the citizen” (Sadler v. Langham, 34 haul staves or spokes over the public high- Ala. 311; Dorman v. State, 34 Ala. 216; way, and in the prosecution of private busi-State v. B. So. Ry. Co., 182 Ala. 492, 62 So.

If the person of another vocation be 77, Ann. Cas. 1915D, 436); (2) that, where taxed for such a use of his vehicle on the the legislative act in question prescribes a public highway and in the prosecution of his "rule of purely governmental policy, or rebusiness, and his competitor in a like business lates merely to the conduct and adminisbe not taxed for hauling, in a like vehicle, tration of public affairs," it will not be dea like ponderous article, and by a like fre- clared unconstitutional, unless it is repug. quent use of the highway, and as likely to nant to the organic law "beyond a reasonable tax and subject the highway to wear and doubt." State ex rel. Meyer v. Greene, 154 tear, the classification established and en Ala. 249, 46 So. 268; City of Ensley v. Simpforced would be unjust and arbitrary; not son, 106 Ala, 366, 52 So, 61; Fairhope Sin

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ness.

(102 So.) gle Tax Corporation v. Melville, 193 Ala. 289, 69 So. 466; State v. Birmingham Southern ALABAMA GREAT SOUTHERN R. CO. V. Ry. Co., 182 Ala. 492, 62 So. 77, Ann. Cas.

GRAUER. (2 Div. 830.) 1915D, 436; Cooley on Const. Lim. c. 7, 8 6;

(Supreme Court of Alabama. Nov. 6, 1924. State ex rel. Troy v. Smith, 187 Ala. 411, 65

Rehearing Denied Nov. 27, 1924.) So. 942.

The ordinance cannot be saved by the pre-1. Railroads 395 — Violation of speed orsumption of its constitutionality, if it ap dinance admissible under wanton count. pears to be repugnant to the organic law. Violation of speed limit of ordinance is simThe ordinance will be judged by the rule of ple negligence, yet under wanton count ordiSadler v. Langham, 34 Ala. 311, Dorman v.

nance is admissible in connection with other State, 34 Ala. 216, and State v. Birmingham evidence of violation as basis for inference of Southern Ry. Co., 182 Ala. 492, 62 So. 77,

character of act concerning which complaint

is made. Ann. Cas. 1915D, 436.

The opinion and conclusion of the majority 2. Evidence On 366(1)-Manner of admitting will be found in the opinion of SOMER town ordinance as to speed limit of trains held VILLE, J., below.

without error.

In view of Code 1907, § 3989, where mayor

of town identified book as book of ordinances SOMERVILLE, J. (1] If the construction of town, testified that it contained ordinance inplaced on the ordinance in question in the volved as to speed limit of trains, and identiopinion of Mr. Justice THOMAS were the fied signatures of mayor and clerk, and plainonly reasonable construction it would bear, tiff's counsel read first section, and offered to We would agree with his conclusion that the read remainder, whereupon defendant's counordinance is invalid for the reasons stated by sel said, “Just consider it in,” there was no him.

reversible error in manner of admitting ordi

nance in evidence. We think, however, that the language of the ordinance, imposing a license tax on the 3. Railroads m397(5)-Evidence of customary owners of vehicles "which are used in haul. use of track known to trainmen held admis. ing, transporting, or moving staves,

sible. saw logs, or any other character of logs or

Evidence of custom and usage of tracks by timber or lumber, etc.” (italics ours), may large numbers of people, on special occasions, be reasonably construed as applicable only well known to those operating engine or train to vehicles which are commonly used by the could be reasonably inferred that like usage

over tracks, was admissible, if from usage it owner, and, in a general sense, devoted by would be exercised, and that human beings him to those purposes, and not to vehicles would be exposed to peril at time of accident. which the owner may casually and occasion. ally use therefor.

4. Railroads 397 (5)–Evidence held compe. In common parlance, “to use" means to

tent to show customary use by public. employ for any purpose.

In some cases it Evidence of railroad company's keeping up may refer to a single act of using, but more of steps and of deceased's statements as to conoften it implies habitual action (State v. templated use of track before accident was comStanley, 84 Me. 555, 24 A. 983, 984), or some

petent to slow use by deceased in accordance

with customary use of tracks by public, and decree of continuity or permanence. Com. v.

that train crew knew that deceased was going Patterson, 138 Mass. 498, 500.

See, also, 8

to use track a few minutes before train started. Words and Phrases, First Series, p. 7228. We think that this was more probably the 5. Trial om 133(6)-Withdrawal and exclusion meaning intended by the language of this of improper argument held to cure error ordinance.

therein. [2] As often declared courts will choose Where remarks of plaintiff's counsel in arthat construction of a legislative act which gument that he had especially selfish idea about will avoid unconstitutionality, if it be rea

accident because of his little folks who lived in sonable

, even though an invalidating con- county were not within class declared ineradistruction be the more reasonable.

cable by withdrawal thereof and exclusion, de

nial of discontinuance because of argument was These considerations lead to the conclu- without reversible error, in view of withdrawal sion, under the construction stated, that the and exclusion from jury. ordinance is not subject to the constitutional infirmities charged, and is therefore valid.

6. Trial Om228 (3) Refusal of misleading The writ of certiorari will therefore be charge held without error.

Requested charge that, if for long time Writ denied.

prior to time plaintiff's intestate was killed defendant's track had been used by small number

of persons, defendant was under no duty to ANDERSON, C. J., and GARDNER, MIL- keep lookout for trespassers was properly reLER and BOULDIN, JJ., concur.

fused because indefinite and comparative words SAYRE and THOMAS, JJ., dissent.

"small number of persons" were misleading. Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

denied.

7. Trial 253(9) Refused charge ignored These charges were refused to defendant: evidence.

"A. If you believe from the evidence that for There was no error in refusing plaintiff's a long period of time prior to the time plaincharge which ignored evidence of general or tiff's intestate was killed the defendant's track customary use of defendant's track as a walk- between Epes station and the bridge had been way by the public at time and place of accident. frequently, habitually, and regularly used by a 8. Trial 267(1)-Written charges given or

small number of persons, the court charges you refused in terms written,

that the person or persons in charge and con

trol of the train on the occasion complained of Written charges should be given or refused

were not under any duty to keep a lookout for in terms in which they are written, and should trespassers on the track at or near the (?) denot be qualified by oral or written instructions, ceased was killed, solely because of such use but, where they are susceptible of two construc. of such track by such numbers of persons." tions, explanatory charges may be requested

A4. The court charges the jury that under and given; instruction defining terms being not the evidence in this case you cannot find for objectionable as qualifying written instructions. the plaintiff on account of the train of defend

ant on the occasion complained of being run Appeal from Circuit Court, Greene County; at a high and dangerous rate of speed.” Fleetwood Rice, Judge.

Stokely, Scrivner, Dominick & Smith, of Action for damages for wrongful death by Birmingham, for appellant. L. M. Grauer as administrator of the estate

Harsh, Harsh & Harsh, of Birmingham, of Hilton Grauer, deceased, against the Ala- and Harwood, McKinley, McQueen & Albama Great Southern Railroad Company. dridge, of Eutaw, for appellee. From a judgment for plaintiff, defendant appeals. Affirmed.

THOMAS, J. A report of the case is The mayor of the town of Epes, as a wit- Grauer v. A. G. S. R. Co., 209 Ala. 568, 96 ness for plaintiff, was shown a book which So. 915. On the last trial the cause was sub(over objections of defendant) he identified mitted to the jury upon the wanton count as the book of ordinances of the town, and of the complaint. No question upon the testified that it was kept in the office of the pleadings is presented for review. town at the time he became mayor, and [1, 2] This court has declared that the viosince that time; that it contained the ordi- lation of the speed limit set forth in a munance here involved, and that such ordi- nicipal ordinance is simple negligence only; nance was in the book at the time of the ac- yet under a wanton count the ordinance is cident; that he knew the mayor and clerk, admissible, in connection with other eviwhose names were signed following the or- dence of its violation, as the basis for an indinance, and that the signatures shown were ference of the character of the act concernthe signatures of the officers in question. ing which complaint is made. Yarbrough v. Over defendant's objection the ordinance was Carter, 179 Ala. 356, 60 So. 833; B., E. & B. introduced in evidence. Plaintiff's counsel R. R. Co. v. Williams, 190 Ala. 53, 66 So. read the first section of the ordinance, and 653; A. G. S. R. Co. v. Bell, 200 Ala. 562, 76 thereupon, as the bill of exceptions shows, So. 920, L. & N. R. R. Co. v. Lloyd, 186 Ala. "said to defendant's counsel in reference to 119, 65 So. 153; L. & N. R. R. Co. v. Webb, section 2 of the ordinance: I don't care 97 Ala. 308, 315, 12 So. 374. There was no anything about that unless you do—the bal- reversible error in the rulings relating to, ance of it is in reference to .standing on a and the admission in evidence of, the ordicrossing——has nothing to do with this case.' nance of the town of Epes in the manner inCounsel for defendant therefore (thereupon) dicated by the bill of exceptions. That ordisaid: 'If you have introduced all of it you nance was considered as read and in evi. had better put it in.' Thereupon plaintiff's dence. Code 1907, § 3989; Town of Elba v. counsel said: 'All right, if you want it in Cooper, 208 Ala. 149, 93 So. 853; Payne v. I'll read it. I have no objection to it.' Roy, 206 Ala. 432, 90 So. 605. The dictum Thereupon defendant's counsel said: ‘Just contained in Central of Ga. Ry. Co. v. Blackconsider it in.'"

mon, 169 Ala. 304, 313, 53 So. 805, is not in The first section of the ordinance is as fol- harmony with the authorities first above lows:

cited. In that case the injury was sustained "Be it ordained by mayor and counsel of the without the corporate limits, and the issue town of Epes, Ala., that it shall be unlawful of fact was subsequent negligence. On the for locomotives or trains to run at a greater former appeal in the instant case we did not rate of speed than six miles an hour within the hold that the ordinance in question was not corporate limits of said town of Epes, and any admissible in evidence, but only that its ex.. engineer or conductor who shall cause any en- clusion, under the facts of the case, was not gine or train to run at a greater speed than six miles an hour within the limits of said town

prejudicial to plaintiff, shall be guilty of a misdemeanor-on conviction

[3] In L. & N. R. R. Co. v Heidtmueiler, thereof shall be fined not less than five nor more 206 Ala. 29, 89 So. 191, and Grauer v A. G. than fifty dollars."

S. R. Co., 209 Ala. 568, 96 So. 915, it yas de

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(102 So.) cared not permissible to prove extraordinary, tion declared and defined in L. & N. R. R. or exceptional uses of the track at times ma- Co. v. Heidtmueller, 206 Ala. 29, 89 So. 191, terially different from that when the acci- was not overlooked. dent occurred. However, this exception [4] A witness (Miss Richie) had testified would not preclude evidence of a custom and as to the details of the accident, the general such usage of large numbers of people on and customary use by the public and her special occasions well known to those operat- family of said tracks as a walkway to and ing engines or trains over the tracks at such at the place where Hilton Grauer was killed, place and at such time, if from such usage it and was asked this question: "Do you know could be reasonably inferred that a like who kept those steps up, whether the railusage would be exercised, and that human road did or not?" She answered: “The beings (in all reasonable probability) would railroad kept the steps up." This evidence, be exposed to peril at the time of the acci- and that of R. L. Hilton, taken with the dent. It is the likelihood of peril to the safe- other evidence, tended to show the custom of ty of passers-by known to defendant's em- the traveling public to use the track at the ployees which makes the duty-not the place time and place as a walkway was by permisitself. Nave v. A. G. S. R. Co., 96 Ala. 264, sion and a circumstance or basis for the in11 So. 391; Ga. Pac. R. Co. v. Lee, 92 Ala. ference, with other evidence, that the cus271, 9 So. 230; Haley, Adm'r, v. K, C., M. & tom was known to the employees of defendB. R. R. Co., 113 Ala. 640, 652, 21 So. 357; ant in charge of the train. A. G. S. R. Co. v. Guest, Adm'r, 136 Ala. The witness R. L. Hilton, the depot agent, 348, 352, 34 So. 968; Southern Ry. Co. v. was asked: Forrister, 158 Ala. 477, 483, 48 So. 69; B. S.

“Now, get back to what was said by Hilton Ry. Co. v. Fox. 167 Ala. 281, 285, 52 So. 889; Grauer [the deceased] and yourself and the Southern Ry Co. v. Stewart, 179 Ala. 309, conductor and any other person in that crowd 310, 60 So. 927; Northern Alabama Ry. Co. that were there in the presence of each other V. Guttery, 189 Ala. 604, 611, 66 So, 580; A. on the day that Hilton was killed, and shortly G. S. R. Co. v. Snodgrass, 201 Ala. 653, 655, before he was killed." 79 So. 125; Grauer v. A. G. S. R. Co., 209 Ala. 568, 573, 96 So. 915.

The witness answered: There was no reversible error committed "He [the deceased) came up to where we in permitting the witness Dr. Reid and others were, Conductor Garrett and myself, and said to declare the general or ordinary use of the that he was going down the track to Mrs. Hortrack at the point in question by the public ton's to take dinner, and Conductor Garrett before and to the time when Hilton Grauer told him he wished he could go with him. And

I asked him to wait and take dinner with me was killed. This was not an inquiry of the and go down later, and he said that he was use of the track at the point in question by invited there by some young ladies for dinner, a number of people on special occasions, as and he would have to keep his date, and he imwas the subject of discussion in L. & N. R. mediately left us, and we didn't see him any R. Co. v Heidtmueller, 206 Ala. 29, 89 So.more

When Hilton Grauer left us he 191. In the former appeal (in this case) Mr. started down the track. The Mrs. Horton that Justice Somerville, noted as pertinent ques. I spoke of is Mrs. Oster's mother, and they tions of fact for the jury the “density of the live together. When he started down the track

When he left us neighboring population," "general custom of the local train killed him.

the local was standing still, but it started soon use" of the track as a "walkway,” the "num

afterwards." ber," "frequency, and notoriety' of such use by the people. These observations illustrate This evidence was adduced at the other the meaning of the immediate and subse- trial, and is set out in the statement of facts. quent clause of that opinion that evidence The learned justice observed of the evidence of the use on "special occasions,” for “spe- generally (Grauer v. A. G. S. R. Co., 209 Ala. cial purposes," was immaterial as being of 572, 96 So. 918): occasions not likely to recur generally. So “Do the facts of the case satisfactorily show by the expression “special purposes" was that some person would probably be on the meant “not likely to occur” at the time and track at any given time; that his probable presplace in question. These expressions are

ence there is known to the responsible trainconsistent with the other declarations of men; and that, with such knowledge in mind,

they intentionally, not inadvertently, omit a this court contained in the foregoing deci- precaution which any reasonable man must unsions that evidence of a general usage or cus- derstand will probably result in injury to any tom was pertinent and admissible in a case person on the track in front of the advancing like this. There was no error in permitting train?" the several witnesses (Reid, Grauer, Legrone, Anderson, Sawls, and Smith) to testi

It was certainly competent to show a use fy as to the custom or general use by the of the track by deceased in accordance with traveling public of the defendant's tracks' as the customary use of the same by the public, a walkway at the time and place in question. and that responsible members of the train In the admission of such evidence the excep- crew knew that Grauer was going down the

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