
    Francis v. Southern Railway Co.
    
      Action against Tax Collector to Recover Taxes puñd under Protest.
    
    1. Taxation; constitutional limitation of. — The provision of the constitution in Art. 11, Sec. 5, is a limitation upon the power of the general assembly, to authorize a county-to levy a larger rate of taxation in any one year on the value of taxable property therein than one-half of one per cent, except as otherwise provided therein. Any legislative enactment authorizing any greater rate of taxation to be levied than the one prescribed in this section would be void.
    
      2. Act of legislature; no presumption that it is unconstitutional. No presumption will be indulged, that an act of the general assembly is unconstitutional. Its unconstitutionality must clearly appear before the courts are authorized to declare it invalid on that account.
    3. Same; construction of. — Where an act of the general assembly authorizes the court of county commissioners of a county to levy a tax of five cents on the hundred dollars, and is silent in regard to the constitutional limitation, it will be construed to authorize the levy of the tax therein provided for within the rate prescribed by the constitution.
    4. Complaint against tax collector; lohat must allege. — In a suit against a tax collector .to recover the amount of a tax alleged to he illegally collected and paid under compulsion, unless the complaint avers that the commissioners court in Us order directing the levy of the tax exceeded the rate of one-half 'of one per centum the presumption will be indulged that the order was within that limit.
    Appeal from Birmingham City Court.
    Tried before the Hon. Wm. W. Wilkerson.
    This action was by the Southern Railway Company against Francis to recover from him an amount - of money paid by the company to him as taxes. The money was paid under protest. It is alleged that the special act under which the tax was levied and collected was unconstitutional. The act was, “An act to provide for the better support and maintenance of the public schools of Jefferson county;” and authorized the levy of a tax of five cents on the one hundred dollars for this purpose. , The only question considered is whether or not idle special act authorized taxation above the constitutional limitation; and it was presented in the court below by demurrer to the complaint; and in this court by the judgment on demurrer — the defendant having declined to plead over.
    Tillman & Campbell, for appellant.
    Smith & Weatherly, contra,
    
    cited on the question considered, Melinites v. Eberlp, 82 Ala. 242; Elsberry v. Meay, 63 Ala. 614; Montgomery v. Mtate, 88 Ala. 141.
   TYSON, J.

— The provision of the constitution as found in article 11, section 5, is a limitation upon the power of the general assembly to authorize a county to levy a larger rate of taxation in any one year on the value of the taxable property therein than one half of one per centum except as otherwise provided therein. Obviously any legislative enactment authorizing any greater rate of taxation to be levied than the one prescribed in this section would be unconstitutional. The act assailed in this case contains no reference as to the rate of taxation fixed by this limitation. The authorization to the commissioners’ court of Jefferson county to levy a tax of five cents on the one hundred dollars is broad’and without limitation in respect to its being in excess of or within the one half of one per centum as fixed by the constitution. However, -,we cannot indulge a presumption in favor of its unconstitutionality; on the contrary, its unconstitutionality must clearly appear before we are authorized to declare it invalid on that account. The .construction, under this rule, which we are compelled to put u-pon the act, is that it authorizes the commissioners’ court of Jefferson county to levy the tax therein provided within the rate prescribed by the constitution. Such a construction relieves the act of all the infirmities urged against its constitutionality.

. The complaint in this case does not aver' that the commissioners’ court in its order directing the levy of this tax, exceeded the rate of one half of one per centum. In the absence of such an averment, the presumption must be indulged that the order entered by the commissioners’. court to levy this tax, was within that rate.

Under the construction we have placed upon the act, the case of the Southern Railway Company v. St. Clair County, in MS., is decisive of its constitutionality.

The judgment of the court must be reversed and the cause remanded.  