[Perry and Hale Counties v. Railroad Co.] for this service. This clause is simply directory. The maximum of the levy fixed by this section is mandatory. Section 93 of the act of 1875 provides, that the levy of county taxes shall be made at the July term of the Court of County Commissioners. Section 87 of that statute had made the second Monday in July a term of the said court to examine the assessor's returns, &c. The levy of the county tax can only be made, under this statute, at a regular term of the court, some term to which the court is adjourned from a regular term, or at a special term called according to section 744 of the Code of 1876. This, because the court can not lawfully meet for the purpose at any other time, and not because the duty is what is termed mandatory. If it were proposed to collect this tax by the agency of the county tax-collector, we would be inclined to hold the certificate of the State auditor to the county assessor, notifying him of "the number of miles of track and value thereof, and the proportionate value of personal property taxable" in his county, is a condition precedent to the right to make such collection. These proceedings, however, are petitions to the court, for direction to the receiver to pay the taxes. In such case, the auditor's certificate to the county assessor can accomplish no purpose. It is sufficient for this form of relief that the amount of the taxes has been legally ascertained, or that sufficient facts are shown to render the ascertainment a matter of calculation. This being done, the taxes become an ascertained debt, or legal liability, it is the duty of the court to order the payment of. Under the foregoing principles, governed by the state of the records now before us, the railroad corporation is liable for the taxes for each of the years named, except, perhaps, the years 1873, and 1875. For the year 1873, it is not averred that the board met for the purpose of equalizing the values. For the year 1875, there is nothing shown as to Hale county, and a very imperfect showing as to Perry county. Perhaps, these omissions and irregularities, as to the year 1875, may be supplied and corrected on another hearing. As to the years 1869, 1870, 1871, 1872, and 1874, as the records now stand, the railroad is liable for the county levies, as shown by the proceedings in the several years. We will not, however, render final decrees in these causes, but will remand them for further proceedings in the court below. We do this, for the reason, that to decree otherwise, would produce an inequality we are unwilling to make. There is another reason, which operates to make this an exception to a salutary general rule. The testimony to be [Clark v. Knox.] adduced on another trial is record, or documentary, and the judicial policy against opening a controversy, once decided, to further parol testimony, does not apply. We therefore remand the causes, with instructions to the court below to receive further documentary or record proof from either party. See State Auditor v. Jackson County, at the present term. Without entering, at this time, into a discussion of the question, we decline to award interest on these back taxes. The uniform custom in this State, so far as our information extends, has been not to demand interest, as interest, on taxes in default, and we will not disturb that custom. The decree of the chancellor, in each of the causes, is reversed, and the causes are remanded. Clark v. Knox. Motion to Dismiss Appeal. 1. Parties to appeal.-On appeal from a decree in chancery, if prosecuted by the complainants in the bill, all the defendants must be made appellees; and if prosecuted by any of the defendants, it must be in the names of all of them as appellants, and against the complainant as appellee: and there can be summons and severance in this court, according to the respective interests of the parties. 2. Appeal bond; condition, and penalty. - When an appeal is sued out by the complainant in the bill, from a decree which is not for the payment of an ascertained sum of money, if he wishes to supersede further proceedings, the penalty of the bond should be in such sum as will secure the payment of the probable amount recoverable under the decree, with the interest which may accrue pending the appeal, if the decree should be affirmed; and the condition should be (Code, § 3928) for the prosecution of the appeal to effect, payment of the judgment of this court, and all such damages as the defendants, or any or either of them, may sustain in consequence of the appeal. APPEAL from the Chancery Court of Greene. Motion to dismiss the appeal. The transcript has not come to the hands of the reporter, and he can not state the facts on which the motion is founded. G. B. MOBLEY, and SNEDECOR & COCKRELL, for the motion. BRICKELL, C. J.-The decree rendered on the original bill did not change the relation of the parties to the suit. An appeal prosecuted by the complainant, from the decree, must be prosecuted against all the defendants to the bill-they are [Clark v. Knox.] all necessary and proper parties appellee. An appeal, prosecuted by any of the defendants, must be prosecuted in the name of all the defendants, and against the complainant as sole appellee. The appellants can join, or sever, or refuse to take any part in the assignment of errors. The decree not being for the payment of an ascertained sum of money by the complainant, if he wishes to supersede further proceedings, the penalty of the appeal bond should be in such sum as will secure the payment of the probable amount recoverable under the decree, with the interest which may accrue pending the appeal, if the decree should be affirmed. The condition of the bond should be, for the prosecution of the appeal to effect, payment of the judgment of this court, and all such damages as the appellees, or either, or any of them, may sustain in consequence of the appeal.-Code of 1876, § 3928; Hughes v. Hatchett, 55 Ala. 539. The appeal by the complainant must be amended, to conform to this view; and he may, within thirty days, execute a new appeal bond, with the penalty fixed as above indicated, and the proper condition, if he desires a suspension of further proceedings under the decree, or a suretyship for costs, if that is not desired. The bond may be here executed, or it may be taken and approved by the register of the Chancery Court, and certified to this court. The appeal taken by Thomas W. Coleman, as administrator ad litem of Samuel A. Wilson, must be amended, making all the defendants, parties appellant, and the complainant sole appellee; and any one of them may execute a new securityship for costs. There must be notice to, or an appearance for such of the defendants, as do not join in taking the appeal. CASES IN THE SUPREME COURT OF ALABAMA. DECEMBER TERM, 1880. Winter v. The City Council of Montgomery. Action for Taxes Paid under Protest. 1. When action lies to recover money paid on illegal tax. To support an action for money had and received against a municipal corporation, to recover takes illegally assessed and collected, two facts must concur: 1st, a want of authority for the imposition and collection of the tax, rendering the proceedings, not merely irregular, but absolutely void; and, 2d, a payment under compulsion, or duress, to avoid an arrest, or to prevent the seizure of goods, and not merely under protest. 2. Constitutionality of statutes; how determined by courts.-To justify the courts in pronouncing a statute void, it must be violative of some constitutional provision, State or Federal, or must be an attempted exercise of power not legislative in its character, or of power committed to some other department of the government; but, whether the policy of the statute is sound, whether it will promote the public good, whether it is in harmony with natural right and abstract justice, and whether the legislature, in its passage, observed a care and caution commensurate with the importance of the interests and questions involved, -these are not judicial questions. 3. Special statute authorizing city of Montgomery to aid in construction of South and North Alabama railroad; omission of agreed propositions, to be submitted to vote of citizens.—In the act approved December 7th, 1866, entitled "An act to authorize the city of Montgomery to aid in building and equipping the South and North Alabama railroad from Montgomery to Limekiln," the failure to set out at length, or in substance, the propositions which had been agreed on between the directors of the railroad and the city council, and on which a vote of the citizens was to be taken, under the provisions of said act, to ascertain whether aid should be extended by the city to said railroad, does not affect the validity of the act; there being no constitutional provision then of force, and no prescribed mode of legislative procedure, which required their insertion, and the omission not causing any doubt or uncertainty in the act itself. 4. Same; election by vote of citizens; certificate of managers as to result.—Under the provisions of said act, the managers of the election, to be held for the purpose of testing the sense of the citizens on the question of aid vel non, were appointed by the mayor, and were required by the act to certify to him the result of the election; but they were not constituted a special tribunal, clothed with the exclusive power of determining the result; nor was their certificate the only evidence of the result which the city council could receive, which they could act. Hence, their failure to make such certificate, and upon [Winter v. The City Council of Montgomery.] or the failure of the record of the proceedings of the city council to show that it was made, does not invalidate the proceedings of the city council, por affect the validity of the tax levied in accordance with the result of the election. 5. Same; levy of tax on real estate only.-The grant of power to the city council by the terms of said act, the election having resulted in favor of aid to the railroad, "to levy such tax as may be necessary, upon the real and personal property in said city," is a grant of legislative, or governmental power, rather than corporate power; and if it be held to require the imposition of a tax on all the property in the city, both real and personal, without any discretionary power to discriminate between them, a tax levied on real estate alone would not be void: the omission or failure to tax personal property also, equally with real property, would be a mere error, or irregularity, for which a tax-payer, if thereby injured, would have an adequate remedy by mandamus before payment of the taxes assessed against him. 6. Same; amount of aid voted and taxed.-The proposition submitted to the vote of the citizens, at the election held under said act, fairly construed, was, whether the city should issue its bonds in aid of the railroad to an amount not exceeding one million dollars"; and the election having resulted in favor of the proposition, the city council had a discretionary power as to the amount of bouds to be issued, not exceeding one million dollars, and might confine the issue to five hundred thousand dollars. APPEAL from the Circuit Court of Montgomery.. This action was brought by Mrs. Mary E. Winter, against the City Council of Montgomery, as a corporation, to recover moneys alleged to have been illegally exacted and collected by the defendant, and to have been paid by the plaintiff under protest and duress, and to avoid a sale of her property under execution, during the years 1868 to 1873, both inclusive; and was commenced on the 18th November, 1873. The money sought to be recovered was paid, during those years respectively, as taxes assessed against real estate in the city of Montgomery belonging to the plaintiff, to pay the interest on certain bonds issued by the city of Montgomery, or the corporate authorities thereof, to aid in the construction of the South and North Alabama railroad from the city of Montgomery to Limekiln, now called Calera. The bonds were issued under authority supposed to be conferred by an act of the General Assembly of Alabama, entitled "An act to authorize the city of Montgomery to aid in building and equipping the South and North Alabama railroad from Montgomery to Limekiln," approved December 7th, 1866; and an election held in the city of Montgomery on the 17th December, 1866, under the provisions of said act, to ascertain the sense of the qualified voters of the city on the question whether aid should be extended by the city to the railroad, as authorized by said special statute. The following are the provisions of said special statute: Sec. 1. "That an election shall be held in the city of Montgomery, on the third Monday in December, 1866, to take the |