Appellee's criticism of the statement in the foregoing opinion that "the averment of appellee's original pleading admits that he had notice as prescribed by the statute" is technically correct, but is without substance as the amendment to his original petition does admit notice and the court was dealing with the original petition as amended.
The only pleading filed was the petition and the amendment thereto and the sole subject-matter thereof was the alleged execution for the collection of the penalty assessed by the tax commission for defendant's failure to place revenue stamps on taxable tobacco — cigarettes and snuff — found in petitioner's possession in his place of business where tobaccos were kept for sale.
There is nothing in the petition showing a seizure and forfeiture of the tobacco. Therefore, such seizure and forfeiture, if there was such, is not brought within the jurisdiction of the court. The notice, which the amended petition admits was served on the appellee follows, substantially, the provisions of the statute, which confers on the tax commission, in the absence of a demand for trial in a court of competent jurisdiction, the power, in its discretion, to assess a penalty "of not less than twenty-five dollars ($25.00), nor more than five hundred dollars ($500.00)." The notice prescribed by the statute is essential to the jurisdiction of the tax commission to assess the penalty, and if the notice is given (and we hold that the notice in the instant case was sufficient), and there is no demand by the taxpayer for trial, as the statute provides, the courts will not intervene to review the discretion of the commission.
If the statutory notice is not given, the commission is without authority to impose the statutory penalty.
The law of procedure prescribes the method of invoking jurisdiction to determine justiciable issues, and the agreement of the parties undertaking to impose on the courts the duty of deciding such issues, without appropriate pleadings, is a practice that cannot be approved. The principle is fundamental to our form of judicature. Ex parte Wilkey (Ala.Sup.)172 So. 111;1 Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 So. 804; Federal Land Bank of New Orleans v. Mulkey, 228 Ala. 500,153 So. 775.
The only question presented in this case was the constitutionality of the section under *Page 70 which the execution was issued. State ex rel. Knox v. Dillard et al., 196 Ala. 539, 72 So. 56.
The application for rehearing is therefore overruled.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.