Appellee, Gaylord Department Stores of Alabama, Inc., (hereafter referred to as Gaylord) is the target of cross fire between appellee, City of Chickasaw, and appellant, City of Mobile, both in Mobile County, in the efforts of each to collect privilege license taxes in the form of a one-cent sales tax for doing business in the particular municipality.
In order to obtain a judicial ascertainment as to which municipality, appellee or appellant, is lawfully entitled to collect license taxes (the validity of the ordinances imposing the tax is not here questioned), Gaylord filed in the Circuit Court of Mobile County, in Equity, its amended petition for a declaratory judgment and for relief by other process.
A correct decree in answer to the petition and other pleadings filed by the respondents, the two municipalities, depends on the constitutionality of Act No. 866, General Acts of 1961, Vol. II, p. 1355, in its relation to §§ 45 and 61 of the Constitution. No other constitutional questions are adequately argued in the brief of appellant, and hence will not be considered. —Rule 9, Revised Rules of the Supreme Court of Alabama, Vol. 3, Title 7, Recompiled Code of 1958; Limbaugh v. Comer, 265 Ala. 202, 90 So.2d 246.
Appellant cites § 45 of the Constitution of 1901, which reads as follows:
The title to Act No. 866, supra, reads as follows:
Included in the Act is Section 2, which reads as follows:
We think this section is foreign to and incongruous with the title, and therefore offends § 45 of the Constitution. Ex parte Pollard, 40 Ala. 77(2).
But the inclusion of Section 2 does not invalidate the whole Act. This court in State ex rel. Clark v. Carter, 174 Ala. 266, 56 So. 974(6), observed as follows:
It is to be noted that the Act contains § 3, which provides that if any section or part of the Act be held unconstitutional by any court of competent jurisdiction, it shall not affect the remainder of the Act.
In view of the fact that in our opinion § 2 of the Act is violative of § 45 of the Constitution, we pretermit any discussion of § 61 of the Constitution, which reads as follows: "No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose."
Because of its invalidity, there is no room for contention on the part of appellant that the inclusion of § 2 so altered or amended the bill on its passage through either house as to change its original purpose.
Appellee Gaylord contends that appellant is precluded from asserting the unconstitutionality of the Act because appellant granted to it ad valorem tax exemption in the same manner as § 2 provides an exemption from ad valorem taxes for appellee, City of Chickasaw. The contention is that the City of Mobile is therefore not adversely affected and cannot be heard to complain. Citing State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473(6); State v. Friedkin, 244 Ala. 494, 14 So.2d 363(1).
Appellee in this contention overlooks the fact that appellant has an interest in the loss of sales tax revenue due to the provisions of the Act, which takes Parcel B from the City of Mobile and annexes it to the City of Chickasaw. This loss of revenue adversely affects appellant. In trying to preserve this revenue, it has a right to challenge the validity of the Act.
We hold that the Act is constitutional so far as the same is challenged here by assignment of error 3 and supported by adequate argument.
The decree of the trial court is affirmed.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, and was adopted by this court as its opinion.
LIVINGSTON, C. J., and GOODWYN, COLEMAN and HARWOOD, JJ., concur.