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(102 So.)

existing circumstances only, or so constitut- 150 Ala. 74, 43 So. 482. It was there deed 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 substantial distinctions which make one class different from another. S. & N. A. R. Co. v. Morris, 65 Ala. 193; Randolph v. Builders' & Painters' Sup. Co., 106 Ala. 501, 17 So. 727; City of Cullman v. Arndt, 125 Ala. 581, 28 So.

court [commissioners' court] that it should determine, in keeping with the object and purpose of the statutory provision, what wagons hauling what character of the material mention should be licensable. The weight of the tion giving rise to the conferring of the power burden borne by the vehicle was the considera

to license and the order of the court is clear

ly within the grant." (Italics supplied.)

The expression in the Kennamer Case,

70; Board of Commissioners of Mobile v. Orr, 181 Ala. 308, 61 So. 920, 45 L. R. A. (N. S.) 575; State v. Goldstein, 207 Ala. 569, 93 So. 308. See, also, Maercker v. City of Milwaukee, 151 Wis. 324, 139 N. W. 199,"wagons hauling what character of the maL. R. A. 1915F, 1196, Ann. Cas. 1914B, 199; Johnson v. St. Paul, etc., Co., 43 Minn. 222, 45 N. W. 156, 8 L. R. A. 419; North Carolina v. Williams, 158 N. C. 610, 73 S. E. 1000, 40 L. R. A. (N. S.) 279, and notes; Cooley's Const. Lim. (6th Ed.) p. 479 et seq.

The ordinance of the court of county commissioners of Greene county is set out in the indictment. It is as follows:

"It is therefore ordered by the court of county commissioners of Greene county, Alabama, that, for the purpose of maintaining the public roads, bridges, and ferries of the county, the following license taxes be, and the same hereby are, imposed upon the owners of the following class of vehicles which are used in hauling, transporting, or moving staves, stave bolts, or billets, stave timber, spokes, spoke billets, or spoke timber, saw logs, or any other character of logs or timber or lumber upon the public roads of Greene county, Alabama, to

wit:

"For the year 1920 and annually thereafter

until further ordered by the court: "For each wagon drawn by not more than two animals, $7.50.

"For each wagon drawn by more than two and not more than three animals, $10.

"For each wagon drawn by more than three and not more than four animals, $15.

"For each traction engine, or steam engine of any kind (not including automobiles or motor cars), used in drawing or pulling one or more wagons, cars, vehicles, or trailers, $25. For each wagon, car, or trailer, or other vehicle drawn by or pulled by an automobile, motor car, motor truck, traction engine, or steam engine of any kind, $15.

"It is further ordered by the court that the owner of each of said vehicles shall pay to the judge of probate of Greene county, Alabama, the license tax due by him hereunder, and procure a license for the use of such vehicles, upon the public roads of said county before the same is used for any of said purposes, upon the public roads of Greene county, Alabama, which license shall authorize the owner of such vehicle to use the same for hauling, transporting, or moving staves, stave bolts, or billets, stave timber, spokes, spoke bolts, or billets, or spoke timber, saw logs, or any kind or character of logs or timber or lumber, upon the public roads of Greene county, Alabama, during the, year the same is issued, and not otherwise."

That ordinance is within the decision of this court rendered in Kennamer v. State,

terial mentioned" (italics supplied), meant, under the facts, "logs," "lumber," "timber," other than "firewood," and was made the basis of classification in said ordinance; that is, the contents of the wagon, the material hauled, and not the unusual burden being imposed, or commerce or business conducted, upon and in the public highway. The general observation should be made that the basis of a proper classification may be found in an extraordinary use of a public highway-such as the hauling thereon of offal or refuse offensive to the senses or tending to affect the health of the citizen, the conduct of circus parades, the prosecution of private business, as hauling for hire peddlers, jitneys, busses, automobiles for hire, or the imposition of unusual burdens upon public roads and bridges-and in the substantial and differing character of the vehicles employed as to weight, horse power, whether

gas or electric, trucks or automobiles, and the like. So, also, the basis for a classification for the purpose of raising revenue for road purposes may be found in a general vehicle tax to the exclusion of other passengers traversing the public highway. However, an administration of a municipal or

dinance which would tax one vehicle and exempt another, by reason only of the character of commodity hauled, is a tax imposed on the mere hauling of the particular commodity, and the imposition of such a tax is arbitrary and unreasonable.

The Court of Appeals rested its decision in Conecuh County v. Simmons, 19 Ala. App. 65, 95 So. 488, and in this case, upon Kennamer v. State, 150 Ala. 74, 43 So. 482. It should be said that the cases of Kennamer v. State, supra, and Hill v Moody, 207 Ala. 325, 93 So. 422, and other cases having application recognize that, under due legislative authority, counties may raise revenues for road improvement through the direct method of license fees which are reasonable and uniform, imposed upon vehicles using the public highways (Adams, Tax Col., v. Southern Ry Co., 167 Ala. 383, 52 So. 439); may prescribe proper rules, regulations, or conditions for the use, or permit for the conduct, of commercial or business enterprises on such highway (Mills v. Comm. Court, 204

Ala, 40, 85 So. 564; McLendon 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 had 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 describing the business being conducted; as hauling fuel oil or gasoline by truck along the public highway for sale, etc. In the Greene county ordinance, being construed and tested under the Constitution and rules obtaining, the stated contents of the vehicle and the character of the article or material being hauled have not been employed as descriptive of a business being conducted on the public highway, but made the basis for classification and tax for the hauling, based solely on an arbitrary description of contents of the vehicle.

It is the judgment of the writer that, under the facts of the Kennamer Case, supra, the classification employed in the ordinance there considered was arbitrary and unjustbased, as it was, solely upon the character of material being hauled. It took no account of the vehicle so used upon the public highway, or of the horse power employed, the weight, or reasonable probability of wear and tear to the highway, or whether or not the hauling was done for hire or in the prosecution of a material part of a private business or occupation on the highway, other than it applied to the contents of the vehicle. These things and conditions may be made the basis of a reasonable and uniform classi

fication.

The court agrees with the stated tests required of such classifications, but does not agree with the application that would condemn the Greene county ordinance. The writer thinks that by the terms of the ordinance its administration can but be arbitrary and unjust. For illustration: If, in the administration of the ordinance, a timber or millman is taxed on his vehicles because he hauls therein, over the public highway, staves or spokes, to serve his own purposes or for manufacture (not for hire), and if one of another vocation hauls staves or spokes over the public highway (not for hire), and be not so taxed, that administration of the ordinance would not be uniform as to all who haul staves or spokes over the public highway, and in the prosecution of private business. If the person of another vocation be taxed for such a use of his vehicle on the public highway and in the prosecution of his business, and his competitor in a like business be not taxed for hauling, in a like vehicle, a like ponderous article, and by a like frequent use of the highway, and as likely to tax and subject the highway to wear and tear, the classification established and enforced would be unjust and arbitrary; not

Under the organic law, as given application by the federal and state courts, the classification was unreasonable and discriminatory. Board of Commissioners of Mobile v. Orr, supra; Yick Wo v. Hopkins, supra. The ordinance pertains to the use of the public highway by private individuals in the prosecution of their daily businesses. Authorities collected in State v. Goldstein, 207 Ala. 569573, 575, 578-585, 93 So. 308.

However this may appear to the writer, the other justices are of opinion that the ordinance may be construed so as to save it from the imputation of unconstitutionality, under the usual presumptions obtaining. It is settled in this state: (1) That constitutional provisions, designed for the "security of the elementary rights of life, liberty, and property, should be construed liberally in favor of the citizen" (Sadler v. Langham, 34 Ala. 311; Dorman v. State, 34 Ala. 216; State v. B. So. Ry. Co., 182 Ala. 492, 62 So. 77, Ann. Cas. 1915D, 436); (2) that, where the legislative act in question prescribes a "rule of purely governmental policy, or relates merely to the conduct and administration of public affairs," it will not be declared unconstitutional, unless it is repugnant to the organic law "beyond a reasonable doubt." State ex rel. Meyer v. Greene, 154 Ala. 249, 46 So. 268; City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61; Fairhope Sin

(102 So.)

gle Tax Corporation v. Melville, 193 Ala. 289, 69 So. 466; State v. Birmingham Southern Ry. Co., 182 Ala. 492, 62 So. 77, Ann. Cas. 1915D, 436; Cooley on Const. Lim. c. 7, § 6; State ex rel. Troy v. Smith, 187 Ala. 411, 65 So. 942.

The ordinance cannot be saved by the presumption of its constitutionality, if it appears to be repugnant to the organic law. The ordinance will be judged by the rule of Sadler v. Langham, 34 Ala. 311, Dorman v. State, 34 Ala. 216, and State v. Birmingham Southern Ry. Co., 182 Ala. 492, 62 So. 77, Ann. Cas. 1915D, 436.

The opinion and conclusion of the majority will be found in the opinion of SOMERVILLE, J., below.

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We think, however, that the language of the ordinance, imposing a license tax on the owners of vehicles "which are used in hauling, transporting, or moving staves, * * saw logs, or any other character of logs or timber or lumber, etc." (italics ours), may be reasonably construed as applicable only to vehicles which are commonly used by the owner, and, in a general sense, devoted by him to those purposes, and not to vehicles which the owner may casually and occasionally use therefor.

In common parlance, "to use" means to employ for any purpose. In some cases it may refer to a single act of using, but more often it implies habitual action (State v. Stanley, 84 Me. 555, 24 A. 983, 984), or some decree of continuity or permanence. Com. v. Patterson, 138 Mass. 498, 500. See, also, 8 Words and Phrases, First Series, p. 7228. We think that this was more probably the meaning intended by the language of this ordinance.

[2] As often declared courts will choose that construction of a legislative act which will avoid unconstitutionality, if it be reasonable, even though an invalidating construction be the more reasonable.

These considerations lead to the conclusion, under the construction stated, that the ordinance is not subject to the constitutional infirmities charged, and is therefore valid. The writ of certiorari will therefore be denied.

Writ denied.

ALABAMA GREAT SOUTHERN R. Co. v. GRAUER. (2 Div. 830.)

(Supreme Court of Alabama. Nov. 6, 1924. Rehearing Denied Nov. 27, 1924.)

1. Railroads 395 — Violation of speed ordinance admissible under wanton count.

Violation of speed limit of ordinance is simple negligence, yet under wanton count ordinance is admissible in connection with other

evidence of violation as basis for inference of character of act concerning which complaint is made.

2. Evidence 366(1)-Manner of admitting town ordinance as to speed limit of trains held without error.

In view of Code 1907, § 3989, where mayor of town identified book as book of ordinances of town, testified that it contained ordinance involved as to speed limit of trains, and identified signatures of mayor and clerk, and plaintiff's counsel read first section, and offered to read remainder, whereupon defendant's counsel said, "Just consider it in," there was no reversible error in manner of admitting ordinance in evidence.

3. Railroads 397 (5)-Evidence of customary use of track known to trainmen held admissible.

Evidence of custom and usage of tracks by large numbers of people, on special occasions, well known to those operating engine or train could be reasonably inferred that like usage over tracks, was admissible, if from usage it would be exercised, and that human beings would be exposed to peril at time of accident. 4. Railroads 397 (5)-Evidence held competent to show customary use by public.

Evidence of railroad company's keeping up of steps and of deceased's statements as to contemplated use of track before accident was competent to show use by deceased in accordance with customary use of tracks by public, and that train crew knew that deceased was going to use track a few minutes before train started.

5. Trial 133(6)—Withdrawal and exclusion of improper argument held to cure error therein.

Where remarks of plaintiff's counsel in argument that he had especially selfish idea about accident because of his little folks who lived in county were not within class declared ineradicable by withdrawal thereof and exclusion, denial of discontinuance because of argument was without reversible error, in view of withdrawal and exclusion from jury.

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Requested charge that, if for long time 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. SAYRE and THOMAS, JJ., dissent.

fused because indefinite and comparative words "small number of persons" were misleading.

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

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7. Trial 253 (9) Refused charge ignored evidence.

There was no error in refusing plaintiff's charge which ignored evidence of general or customary use of defendant's track as a walkway by the public at time and place of accident. 8. Trial 267 (1)—Written charges given or refused in terms written.

Written charges should be given or refused in terms in which they are written, and should not be qualified by oral or written instructions, but, where they are susceptible of two constructions, explanatory charges may be requested and given; instruction defining terms being not objectionable as qualifying written instructions.

Appeal from Circuit Court, Greene County; Fleetwood Rice, Judge.

Action for damages for wrongful death by

L. M. Grauer as administrator of the estate of Hilton Grauer, deceased, against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The mayor of the town of Epes, as a witness for plaintiff, was shown a book which (over objections of defendant) he identified as the book of ordinances of the town, and testified that it was kept in the office of the town at the time he became mayor, and since that time; that it contained the ordinance here involved, and that such ordinance was in the book at the time of the accident; that he knew the mayor and clerk, whose names were signed following the ordinance, and that the signatures shown were the signatures of the officers in question. Over defendant's objection the ordinance was introduced in evidence. Plaintiff's counsel read the first section of the ordinance, and thereupon, as the bill of exceptions shows, "said to defendant's counsel in reference to section 2 of the ordinance: 'I don't care anything about that unless you do―the balance of it is in reference to standing on a crossing has nothing to do with this case.' Counsel for defendant therefore (thereupon) said: 'If you have introduced all of it you had better put it in.' Thereupon plaintiff's counsel said: 'All right, if you want it in I'll read it. I have no objection to it.' Thereupon defendant's counsel said: 'Just consider it in.'"

These charges were refused to defendant: "A. If you believe from the evidence that for a long period of time prior to the time plaintiff's intestate was killed the defendant's track between Epes station and the bridge had been frequently, habitually, and regularly used by a small number of persons, the court charges you that the person or persons in charge and control of the train on the occasion complained of were not under any duty to keep a lookout for trespassers on the track at or near the (?) deceased was killed, solely because of such use of such track by such numbers of persons."

"A4. The court charges the jury that under the evidence in this case you cannot find for the plaintiff on account of the train of defendant on the occasion complained of being run at a high and dangerous rate of speed."

Stokely, Scrivner, Dominick & Smith, of Birmingham, for appellant.

Harsh, Harsh & Harsh, of Birmingham, and Harwood, McKinley, McQueen & Aldridge, of Eutaw, for appellee.

THOMAS, J. A report of the case is Grauer v. A. G. S. R. Co., 209 Ala. 568, 96 So. 915. On the last trial the cause was submitted to the jury upon the wanton count of the complaint. No question upon the pleadings is presented for review.

[1, 2] This court has declared that the violation of the speed limit set forth in a municipal ordinance is simple negligence only; yet under a wanton count the ordinance is admissible, in connection with other evidence of its violation, as the basis for an inference of the character of the act concerning which complaint is made. Yarbrough v. Carter, 179 Ala. 356, 60 So. 833; B., E. & B. R. R. Co. v. Williams, 190 Ala. 53, 66 So. 653; A. G. S. R. Co. v. Bell, 200 Ala. 562, 76 So. 920, L. & N. R. R. Co. v. Lloyd, 186 Ala. 119, 65 So. 153; L. & N. R. R. Co. v. Webb, 97 Ala. 308, 315, 12 So. 374. There was no reversible error in the rulings relating to, and the admission in evidence of, the ordinance of the town of Epes in the manner indicated by the bill of exceptions. That ordinance was considered as read and in evidence. Code 1907, § 3989; Town of Elba v. Cooper, 208 Ala. 149, 93 So. 853; Payne v. Roy, 206 Ala. 432, 90 So. 605. The dictum contained in Central of Ga. Ry. Co. v. Blackmon, 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:

"Be it ordained by mayor and counsel of the town of Epes, Ala., that it shall be unlawful for locomotives or trains to run at a greater rate of speed than six miles an hour within the corporate limits of said town of Epes, and any engineer or conductor who shall cause any en

gine or train to run at a greater speed than six

miles an hour within the limits of said town shall be guilty of a misdemeanor-on conviction thereof shall be fined not less than five nor more than fifty dollars."

cited. In that case the injury was sustained without the corporate limits, and the issue of fact was subsequent negligence. On the former appeal in the instant case we did not hold that the ordinance in question was not admissible in evidence, but only that its exclusion, under the facts of the case, was not prejudicial to plaintiff.

[3] In L. & N. R. R. Co. v Heidtmueiler, 206 Ala. 29, 89 So. 191, and Grauer v A. G. S. R. Co., 209 Ala. 568, 96 So. 915, it was de

(102 So.)

[4] A witness (Miss Richie) had testified as to the details of the accident, the general and customary use by the public and her family of said tracks as a walkway to and at the place where Hilton Grauer was killed, and was asked this question: "Do you know who kept those steps up, whether the railroad did or not?" She answered: "The railroad kept the steps up." This evidence, and that of R. L. Hilton, taken with the other evidence, tended to show the custom of the traveling public to use the track at the time and place as a walkway was by permission and a circumstance or basis for the inference, with other evidence, that the custom was known to the employees of defendant in charge of the train.

clared 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 would not preclude evidence of a custom and such usage of large numbers of people on special occasions well known to those operating engines or trains over the tracks at such place and at such time, if from such usage it could be reasonably inferred that a like usage would be exercised, and that human beings (in all reasonable probability) would be exposed to peril at the time of the accident. It is the likelihood of peril to the safety of passers-by known to defendant's employees which makes the duty-not the place itself. Nave v. A. G. S. R. Co., 96 Ala. 264, 11 So. 391; Ga. Pac. R. Co. v. Lee, 92 Ala. 271, 9 So. 230; Haley, Adm'r, v. K. C., M. & B. R. R. Co., 113 Ala. 640, 652, 21 So. 357; A. G. S. R. Co. v. Guest, Adm'r, 136 Ala. 348, 352, 34 So. 968; Southern Ry. Co. v. Forrister, 158 Ala. 477, 483, 48 So. 69; B. S. Ry. Co. v. Fox. 167 Ala. 281, 285 52 So. 889; Southern Ry Co. v. Stewart, 179 Ala. 309, 310, 60 So. 927; Northern Alabama Ry. Co. v. Guttery, 189 Ala. 604, 611, 66 So. 580; A. G. S. R. Co. v. Snodgrass, 201 Ala. 653, 655, 79 So. 125; Grauer v. A. G. S. R. Co., 209 Ala. 568, 573, 96 So. 915.

There was no reversible error committed in permitting the witness Dr. Reid and others to declare the general or ordinary use of the track at the point in question by the public before and to the time when Hilton Grauer was killed. This was not an inquiry of the use of the track at the point in question by a number of people on special occasions, as was the subject of discussion in L. & N. R. R. Co. v Heidtmueller, 206 Ala. 29, 89 So. 191. In the former appeal (in this case) Mr. Justice Somerville noted as pertinent questions of fact for the jury the "density of the neighboring population," "general custom of use" of the track as a "walkway," the "number," "frequency, and notoriety" of such use by the people. These observations illustrate the meaning of the immediate and subsequent clause of that opinion that evidence of the use on "special occasions," for "special purposes," was immaterial as being of occasions not likely to recur generally. So by the expression "special purposes" was meant "not likely to occur" at the time and place in question. These expressions are consistent with the other declarations of this court contained in the foregoing decisions that evidence of a general usage or custom was pertinent and admissible in a case like this. There was no error in permitting the several witnesses (Reid, Grauer, Legrone, Anderson, Sawls, and Smith) to testify as to the custom or general use by the traveling public of the defendant's tracks as a walkway at the time and place in question. In the admission of such evidence the excep

The witness R. L. Hilton, the depot agent, was asked:

"Now, get back to what was said by Hilton Grauer [the deceased] and yourself and the conductor and any other person in that crowd that were there in the presence of each other on the day that Hilton was killed, and shortly before he was killed."

The witness answered:

"He [the deceased] came up to where we were, Conductor Garrett and myself, and said that he was going down the track to Mrs. Horton's to take dinner, and Conductor Garrett told him he wished he could go with him. And I asked him to wait and take dinner with me and go down later, and he said that he was invited there by some young ladies for dinner, and he would have to keep his date, and he immediately left us, and we didn't see him any more When Hilton Grauer left us he started down the track. The Mrs. Horton that I spoke of is Mrs. Oster's mother, and they live together. When he started down the track When he left us the local train killed him. the local was standing still, but it started soon afterwards."

* * *

This evidence was adduced at the other trial, and is set out in the statement of facts. The learned justice observed of the evidence generally (Grauer v. A. G. S. R. Co., 209 Ala. 572, 96 So. 918):

"Do the facts of the case satisfactorily show that some person would probably be on the track at any given time; that his probable presence there is known to the responsible trainmen; and that, with such knowledge in mind, they intentionally, not inadvertently, omit a precaution which any reasonable man must understand will probably result in injury to any person on the track in front of the advancing train?".

It was certainly competent to show a use of the track by deceased in accordance with the customary use of the same by the public, and that responsible members of the train crew knew that Grauer was going down the

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