Summary
In City of Birmingham v. Wilson, 27 Ala. App. 288, 172 So. 292, the Court of Appeals had under consideration the provisions of an ordinance of the city of Birmingham very similar to that under consideration here and that in the Walden case, supra.
Summary of this case from Franks v. City of JasperOpinion
6 Div. 975.
October 27, 1936. Rehearing Denied December 15, 1936.
Appeal from Circuit Court, Jefferson County; J. Russell McElroy, Judge.
Prosecution by the City of Birmingham against P. N. Wilson. From a judgment for defendant, plaintiff appeals.
Reversed, rendered and remanded.
Certiorari denied by Supreme Court in City of Birmingham v. Wilson, 233 Ala. 410, 172 So. 295.
The agreed statement of facts upon which the case was tried is as follows:
"1. In the above styled cause it is agreed that Section 1 of the License Code of the City of Birmingham, Alabama, for the year 1934 reads as follows:
" 'Section 1. License Schedule. — The following is hereby declared to be the schedule of licenses for the year commencing January 1, 1934, and ending December 31, 1934, for divers businesses, vocations, occupations and professions engaged in or carried on in the City of Birmingham, Alabama, and each and every person, firm, company or corporation engaged in any of the businesses, vocations, occupations or professions herein enumerated shall pay for and take out such licenses and in such sums as are herein provided, to-wit:
" '137 — Gasoline Filling Station — including lubricating oil. Each person, firm or corporation whose principal business is the selling of gasoline, retail — an amount equal to one-tenth of one per cent, of the gross receipts from said business during the year next preceding, with a minimum license in any case of forty dollars.'
"That Section 5 of the License Code of the City of Birmingham, Alabama, for the year 1934, provides as follows:
" 'Section 5. Each person, firm, company, association or corporation engaging in or carrying on any business, vocation, occupation or profession hereinabove enumerated outside the corporate limits of the City of Birmingham, but within the police jurisdiction thereof, shall take out a license and pay therefor an amount equal to one-half the amount of license tax to which he, she or it would be subject were such business, vocation, occupation or profession engaged in or carried on within the corporate limits of the City of Birmingham. All such persons, firms, companies, associations and corporations shall be subject to all the license tax laws of the City of Birmingham applicable within the corporate limits thereof except as in this section otherwise provided.'
"That Section 17 of said License Code provides as follows:
" 'Section 17. That it shall be unlawful for any person, firm or corporation to engage in any of the aforesaid businesses or vocations in the City of Birmingham during the year 1934 without first having procured a license therefor, and each day during which said business or occupation is so engaged in shall constitute a separate offense.'
"That Section 20 of said License Code provides as follows:
" 'Section 20. Section 2172 of the Code of Alabama of 1923, which provides a lien for license or privilege tax, as follows:
" ' "On all property, both real and personal, used in any exhibition, trade, business, vocation, occupation or profession, for which a license is or may be required, municipal corporations shall have a lien for such a license, which lien shall attach as of the date the license is due and shall be superior to all other liens, except the lien of the State, county and municipal corporations for taxes, and the lien of the State and county for license. Such lien may be enforced by attachment or in equity." '
"2. That the facts charged in the complaint in this case are true.
"The sole question involved in this agreed case under section 6095 of the Code of Alabama (as amended by Gen. Acts 1931, p. 409) is the constitutionality of An Act approved September 6, 1927 (Gen. Acts 1927, p. 674) and section 2172 of the 1923 Code above referred to and the constitutionality and validity of the Sections 1 and 5 and subsection 137 of the License Code above referred to, and the reasonableness of the amount of the license levied.
"The City of Birmingham has not calculated and does not know the expense of any police supervision or fire protection outside the corporate limits of the city but within its police jurisdiction and does not give any police or fire protection beyond its corporate limits, other than investigation of crime when requested, and occasional service of the one company of the Fire Department, within and beyond the three mile limit when requested and when in the opinion of the Chief the circumstances warrant it."
W. J. Wynn and John S. Foster, both of Birmingham, for appellant.
Cities within the State of Alabama may fix and collect licenses for any business done outside the corporate limits but within the police jurisdiction thereof. Gen.Acts 1927, p. 674; White v. Decatur, 225 Ala. 646, 144 So. 873. 86 A.L.R. 914; 37 C.J. 180. One assailing an act or ordinance as unconstitutional has the burden of pointing out the defect and establishing the fact. State ex rel. v. Dillard, 196 Ala. 539, 72 So. 56; Hale v. State. 217 Ala. 403. 116 So. 369, 58 A.L.R. 1333; Standard C. O. Co. v. Troy, 201 Ala. 89, 77 So. 383, L.R.A. 1918C, 522; Woco Pep Co. v. Montgomery. 213 Ala. 452. 105 So. 214; 28 C.J. 82, § 24; Best Foods, Inc. v. Christensen, 75 Utah. 392, 285 P. 1001. The burden is on him who assails a license on ground that it is for revenue only to show that it is for such purposes and not for police purposes. Code, 1923, § 2154; Van Hook v. Selma, 70 Ala. 361, 45 Am. Rep. 85; Standard C. O. Co. v. Troy, supra; City of Mayfield v. Carter Hdw. Co., 192 Ky. 381. 233 S.W. 789.
Horace C. Wilkinson and Thos. E. Skinher, both of Birmingham, for appellee.
The legislature is without authority to authorize the levy of a tax for revenue purposes on businesses or occupations not carried on within the corporate limits of a municipality. 1 Cooley on Tax (4th Ed.) 664, § 316; 37 C.J. 181, § 23; Robinson v. Norfolk, 108 Va. 14, 60 S.E. 762, 15 L.R. A.(N.S.) 294, 128 Am. St. Rep. 934; White v. Decatur, 225 Ala. 646, 144 So. 873, 86 A.L.R. 914. Where it is affirmatively shown that the tax levied is imposed without regard to the expense necessary to police or regulate the business taxed, such tax is for revenue purposes rather than police purposes, 215 § 67. 37 C.J. 169, § 6, 38 C.J. 179, § 7; Louisville N. R. Co. v. Baldwin, 85 Ala. 619, 5 So. 311, 7 L.R.A. 266; Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am. St. Rep. 43. Businesses or occupations which do not affect either the health, morals, safety or general welfare of the public, are not subjects of police regulation. 37 C.J. 215, § 67; State v. Sheridan, 25 Wyo. 347, 170 P. 1, 1 A.L.R. 955; Schmidt v. Indianapolis, 168 Ind. 631, 80 N.E. 632, 14 L.R.A.(N.S.) 787, 120 Am.St.Rep. 385.
This is an appeal from a judgment in appellee's favor (acquitting and discharging him) upon a trial before the court sitting without a jury, under a complaint filed in the circuit court by appellant (the allegations of which complaint appellee admits to be true), in the following language, to wit' "Comes the City of Birmingham, Alabama, a municipal corporation, and complains that P. N. Wilson, within twelve months before the beginning of this prosecution, did engage in the business of selling gasoline at retail outside the corporate limits of the City of Birmingham, Alabama, but within the police jurisdiction thereof, without first having procured a license to engage in such business, contrary to and in violation of Section 1, Subsection 137, and Section 5, of the License Code of the City of Birmingham, Alabama, for the year 1934."
The case was tried upon an "agreed statement of facts," and the said "agreed statement of facts" has been incorporated in a bill of exceptions which is before us. It would seem that the proper procedure has been followed to present for our decision the question as to the correctness of the single ruling assigned and argued for error, viz., that discharging appellee under the law and evidence. Code Supp. 1936 (Michie) § 6095; Jerrell v. Equitable Life Assur. Soc., et al., 222 Ala. 687, 134 So. 132.
Here, as in the case of White v. City of Decatur, 225 Ala. 646, 144 So. 873, 874, the city (appellant, here) contends that the authority for the levy as against appellee is found in the provisions of "General Act No. 580 (Gen. Acts 1927, p. 674), entitled "An Act to authorize all cities and towns within the State of Alabama to fix and collect licenses for any business, trade or profession done outside the corporate limits but within the police jurisdiction thereof," approved September 6, 1927 (as amended, but not in the respect here material. we add, by the Act or the Legislature of Alabama approved Nov. 9, 1932, Gen. Acts Ala. 1932, Ex. Sess., p. 240).
The act referred to has tacitly, if not expressly, been held by our Supreme Court to be a constitutional enactment. White v. City of Decatur, supra; City of Dothan v. Alabama Power Co., 229 Ala. 146, 155 So. 697. Therefore, we hold that said act is not in contravention of any constitutional provision. Code 1923, § 7318.
True, as pointed out in the opinion in the case of White v. City of Decatur, supra, "the Legislature is without authority to authorize the levy of a tax for revenue on businesses or occupations not carried on within the corporate limits, as this would amount to taxation without representation and the taking of private property without due process of law, and for uses not authorized by the Constitution." (Italics ours.)
And if it be shown that the license, for the failure to pay which appellee is being prosecuted in this proceeding, is one imposed solely for the purpose of raising revenue, it follows that the ordinance levying same is an unconstitutional enactment, and the judgment of the lower court acquitting and discharging appellee is due to be affirmed. But the law seems to be that, as here, "in the case of useful trades and employments, and a fortiori in other cases, * * * as an exercise of police power merely, the amount exacted for a license, though designed for regulation and not for revenue, is not to be confined to the expense of issuing it; but that a reasonable compensation may be charged for the additional expense of municipal supervision over the particular business or vocation, at the place where it is licensed. For this purpose, the services of officers may be required, and incidental expenses may be otherwise incurred in the faithful enforcement of such police inspection or superintendence." Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85. And in the opinion in this same Van Hook v. City of Selma Case the court said: "Very certain it is, that the courts ought not to scrutinize the amount of the license too narrowly, with the view of adjudging it a tax, where it does not appear to be unreasonable in amount as a mere regulation."
In the instant case the license imposed upon appellee appears to be in exact accord with the terms of the Act of the Legislature approved September 6, 1927 (Gen. Acts Ala. 1927, p. 674), or with it as amended November 9, 1932 (Gen. Acts Ala. 1932, Ex. Sess., p. 240). To be sure "the right here [there] conferred is, to regulate and license for police purposes merely; and the power to license for the purpose of revenue is not to be inferred." Van Hook v. City of Selma, supra.
But, "the rule further applies here, that, when the question as to the reasonableness of a municipal by-law or city ordinance is raised, and it has reference to a subject-matter within the corporate jurisdiction, it will be presumed to be reasonable, unless the contrary appears on the face of the law itself, or is established by proper evidence." Van Hook v. City of Selma, supra; American Bakeries Co. et al. v. City of Huntsville, 232 Ala. 612, 168 So. 880; Walden v. City of Montgomery, 214 Ala. 409, 108 So. 231, 233; Standard Chemical Oil Co. v. City of Troy, 201 Ala. 89, 77 So. 383, L.R.A. 1918C, 522.
In this case it is manifest, we take it, that the "contrary" referred to in the preceding paragraph does not "appear on the face of the law (ordinance) itself"; but appellee stoutly contends that the "Unreasonableness" (invalidity) of the ordinance in question is established by "proper evidence."
The said "proper evidence" upon which he relies is the following paragraph contained in the "agreed statement of facts" upon which the case was tried, to wit: "The City of Birmingham has not calculated and does not know the expense of any police supervision or fire protection outside the corporate limits of the City but within its police jurisdiction and does not give any police or fire protection beyond its corporate limits, other than investigation of crime when requested, and occasional service by the one company of the Fire Department, within and beyond the three mile limit when requested and when in the opinion of the Chief the circumstances warrant it."
The above contention of appellee is, we think, and hold, sufficiently answered by the following excerpt (in all respects, in its statement of the law, applicable here) from the opinion by our Supreme Court in the Walden v. City of Montgomery Case, supra, to wit:
"The ordinance appears upon its face to have been enacted in the exercise of the police power, and is presumed to be reasonable. Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85; Standard Oil Co. v. City of Troy, 201 Ala. 89, 77 So. 383, L.R. A. 1918C, 522. Nothing to the contrary is made to appear and we therefore hold the ordinance a valid exercise of the police power.
"Appellant sought to show that at the point where his lumber yard is located the service both as to fire and police protection was inadequate, but the trial court held such evidence immaterial to the issue presented. We think the ruling correct. These were executive or administrative matters, not involved in the question of the validity of the ordinance. We are cited to no authority holding that such an ordinance is subject to attack upon the ground that, in the opinion of the taxpayer, the police or fire protection was inadequate. Such questions are not to be presented in such form." (Italics ours.)
We are of the opinion the sections of the ordinance under attack were, as for aught that appears, valid, and the judgment of acquittal in favor of appellee was laid in error.
The same is reversed, and it is here, and hereby, ordered, adjudged and decreed that appellee is guilty as charged in the complaint. Codes 1928 and 1923, § 9502.
The cause is remanded to the lower court for the proper imposition of penalty.
Reversed, rendered, and remanded.