Action was brought in the city court of Birmingham, Alabama, by the Southern Railway Company, to recover the sum of $22,458.36, for so much money received by the defendant as judge of the probate court of Jefferson county, Alabama, which sum the plaintiff claimed was wrongfully exacted from it under the provisions of the act of March 7, 1907. This sum is the amount taxed against the Southern Railway Company under the said legislative act, and, under the practice in Alabama, if illegally exacted, it may be recovered.
This act is found in the Code of Alabama of 1907, vol. 1, page 986, §§ 2391 to 2400, inclusive. It provides for the payment of an annual franchise tax to the probate judge by every foreign corporation authorized to do business within the state, in which it has a resident agent, with certain exceptions, for the use of the state, upon the actual amount of the capital stock employed by it in the state; in the amount of $25 on the first $100, 5 per cent on the next $900, and 1/10 of 1 per cent on all the remaining amount of capital so employed.
Provision is made for the assessment of the tax by proceedings before the probate judge, with an appeal to the circuit court in certain cases. The statute enacts that no foreign corporation required to pay a tax under this statute shall do any business in the state of Alabama not constituting interstate commerce, or maintain or commence any action in any of the courts of the state, upon contracts made in the state other than contracts based upon interstate commerce, unless such corporation shall have paid said tax within sixty days after the same shall have become due. The payment of the tax in one county shall be sufficient, notwithstanding the corporation shall do business or have a resident agent in more than one county.
The payment of the franchise tax required by this statute does not exempt any corporation paying the same from payment of the regular license or privilege tax specified or required for engaging in or carrying on business, the license for which is required from individuals, firms, or corporations. In addition to the amount of the franchise tax required to be paid to the state, such foreign corporation shall pay to the county, for the use of the county, an amount equal to one half of the amount paid by it to the state. Loans of money upon which a mortgage tax is paid are deducted from capital employed in the state upon which there shall be paid the recording privilege tax required by law.
The complaint averred that the act is unconstitutional and void, as it impaired the obligation of a contract between the plaintiff and the state of Alabama, and in that it deprived the plaintiff of its property without due process of law, and denied to it the equal protection of the laws.
Plaintiff averred that it is a corporation created under the laws of the state of Virginia, and as such authorized to lease, use, operate, and acquire any railroad or transportation company, then or thereafter incorporated by the laws of the United States, or any of the states thereof. That it thus organized, in February, 1894, and has since carried on the business of acquiring, owning, and operating lines of railroads in various states, and conducting interstate and intrastate transportation of persons and property. That, in conformity with the laws of the state of Alabama, on July 16, 1894, it filed in the office of the secretary of state a copy of its charter, and designated an agent upon whom service could be made, and that, at the same time, it paid to the treasurer of the state of Alabama the sum of $250, being the sum required as a license fee for beginning business in the state. It avers that, after thus complying with the laws of Alabama, it commenced carrying on its authorized business within the state, and has therein carried on the same business ever since; that between the time of entering the state, as aforesaid, and the year 1899, it purchased and acquired, as permitted and authorized by the laws of Alabama, various lines of railroad and the franchises under which they had been built and operated, which lines are connected with, and continuous with, other lines owned by the plaintiff.