
    Francis v. Peevey.
    
      Mandamus against Tax Collector.
    
    (Decided January 20, 1902.)
    1. Poll tax, collection of under constitutional and statutory provisions; charter of city of Birmingham. — Under constitutional and statutory provisions (Constitution of 1875, Art. XI, § 1; Art. XIII, ,§ 4; Code, i§§ 3910, 4030), it is the duty of tie-tax collector of Jefferson county to receive poll taxes tendered by the resident citizens of the city of Birmingham in said county, within prescribed ages, notwithstanding a provision in the charter of the city of Birmingham (Acts, 1898-99, p. 1391), conferring upon the municipal authorities full power and authority to levy and collect from the inhabitants of said city, liable to pay the same, a poll tax, to be applied, exclusively to the public schools of the city, and providing further that the officers appointed by the municipal authorities are “to have the same -rights, powers and remedies for the collection of such poll taxes as are now possessed by the tax collector and other officers of Jefferson county.”
    2. Same; constitutional law; collection of poll taxes. — The provisions of the constitution relating to poll taxes being mandatory, it is not within the power of the legislature to direct the-levy, assessment, collection and application of the poll tax provided for *n the constitution in any other manner or for any other purposes than such as are provided in the constitution.
    3. Same; construction of charter of city of Birmingham, with reference to collection of poll tax. — The act of February 23d, 1899, “to establish a new charter for the city of Birmingham,” (Acts, 1898-99, p. 1391), is only a legislative grant of municipal authority to levy, assess and collect an additional poll tax upon the inhabitants of the city of Birmingham to be applied exclusively to educational purposes within the limits of said city, and does not repeal or affect the general laws providing for the payment of poll taxes to the county tax collector, to be applied to public school purposes within the county.
    
      Appeal from Jefferson Circuit Court.
    Heard before Hon. A. A. Coleman.
    E. D. Smith, for appellant,
    argued tliat it was the intention of the legislature that- the poll tax provided for in the charter of the city of Birmingham was to he in lieu of the State tax, and that any other' construction would render section 51 of said charter unconstitutional, citing State v. Southern By. Oo., 21 So. Hep. 589; Schultes V. Eherly, 82 Ala. 212; N. C. é St. L. By. v. At talla, 21 So. B,ep. 150; Wet more v. State, 55 Ala. 198.
    WalkeR, Tillman, Campbell & Walker, contra..
    
   DOWDELL, J.

— This is a petition for a mandamus filed by the appellee against the appellant, who is the tax collector of Jefferson county, to compel him 'as such tax collector to receive from the petitioner his poll tax for the year 1901. The court below awarded the man-da.) in ls, and from that judgment the present appeal is prosecuted.

The facts are undisputed, and they show that the petitioner, Peevey, is a resident citizen of the city of Birmingham, county of Jefferson, State of Alabama, and subject to the payment of a poll tax, and that he owes the poll tax for the year 1901, and that the same is past due and payable; that Francis is the State and county tax collector, and Gambill is the city tax collector; that Peevey duly offered to pay the tax to Francis, and ¡that he, Francis, refused to receive the same. The petitioner prays for a writ of mandamus “to be directed to the said J. B. Francis as tax collector, commanding him as tax collector of Jefferson county, to accept the said one dollar and fifty cents tendered by petitioner ais poll taxes in order that petitioner may not lose his right to vote in tlie next general election.” As shown by the record, the refusal of the appellant was based upon the theory that under section 51 of an act. approved February 23, 1899, entitled “An act to establish a new charter for the city of Birmingham, Alabama,” which provides “¡that the mayor and aldermen of Birmingham shall have full power and. authority to assess, levy and collect a poll tax from, the inhabitants of said city, liable to pay the same, to be applied exclusively to the public schools of the city; * * * said taxes (to be assessed and collected by such officer as the board may appoint, under such rules and regulations as it may prescribe; such officers to have the same rights, powers and remedies for the collection of such poll taxes as are now possessed by the tax collector and other officers of Jefferson county,” the right and duty to collect and receive the poll tax from the petitioner was conferred and imposed ■upon Gumbill, he being the officer appointed by the municipal authorities of the city to collect or receive the same.

Section 1, Art. XI, of the constitution of the State of Alabama, which was in effect from, to-wit, December 6, 1875, until November 28, 1901, provides as follows: “All taxes levied on property in this State shall be assessed in exact proportion to the value of such property ; Provided, however} the general assembly may levy a poll tax, not to exceed one dollar and fifty cents on each poll, which shall be applied exclusively in aid of the public school fund in the county so paying the same.” Section 4, Art. XIII, of the same constitution provides as follows: “The general assembly shall also provide for the levying and collection of an annual poll tax, not to exceed one dollar and fifty cents on each poll, which shall be applied to the support of the public schools in the counties in which it is levied and collected.” In obedience to the mandate contained in the latter section of the constitution above quoted, the general assembly enacted section 3910 of the Code of 1896, which provides as follows: “There shall be collected from every male inhabitant of this State, over the age of twenty-one years, and under the age of forty-five years, not exempt by law, the sum of one dollar and fifty cents, as poll tax, which shall be applied exclusively in aid of the public school fund in the counties in which it is levied and collected.” So it will be seen that by this section a poll tax of one dollar and fifty 'cents was levied on every male inhabitant of the State over the age of twenty-one years and under the age of forty-five years, not exempt by law, and under i¡t the petitioner became liable for its payment; and although 'since the adoption of the new constitution, which went into effect on the 28th day of November, 1901, there may be no remedy to enforce the collection of ¡the same, yet this in nowise affects the right of the petitioner to pay the same, and it became the duty of the appellant, as State and county tax collector, to receive the same when tendered. — Code, § 4030. There is nothing in the act of February 23,1899, entitled “An act to establish a new charter for the city of Birmingham, Alabama,” above referred to, which either expressly or by necessary implication, repeals the general statute relating to poll taxes. . Moreover, since the provision of the constitution relating to such tax is mandatory, it would not be within legislative power to direct by legislative enactment the levy, assessment, collection and application of the poll tax provided for in the constitution in any other manner or for any other purposes than such as provided in the constitution. The constitution provides that such poll tax when collected shall be applied exclusively in aid of the public school fund in the counties paying the same. All that may be said of the act of February 23, 1899, is that it is a legislative grant of municipal authority to levy, assess and collect an additional poll tax upon the inhabitants of the city of Birmingham to be' applied exclusively to educational purposes within the limits of said city, and whether such power and authority may be conferred on the municipality by legislative enactment under the provision of the constitution is a''question not necessary to the decision of this case and. as to which we are not called upon to intimate any opinion. The only question presented by this record for our decision is whether or not it was the duty of the appellant tax collector to receive and receipt for the petitioner’s poll tax when the same was tendered 'him by petitioner’, and on the undisputed facts in the record our conclusion is, that such was his duty. It, therefore, follows that the judgment of the circuit court must be affirmed.  